April 29, 1996
Appeal from the Supreme Court, Suffolk County (Henry, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs payable to the respondent Murray Naviloff, the plaintiff's motion for summary judgment is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant Thomas Shelton in the underlying action commenced by the defendant Murray Naviloff against the defendant Thomas Shelton.
On June 8, 1990, the defendant Murray Naviloff, a Suffolk County police officer, was in the process of arresting the defendant Thomas Shelton when Shelton punched Naviloff in the eye, causing injuries to Naviloff's eye. Shelton, who was originally charged with assault in the second degree, subsequently pleaded guilty to assault in the third degree under Penal Law § 120.00 (2). During the plea allocution, Shelton acknowledged punching Naviloff in the eye causing lacerations to his eye. Naviloff thereafter commenced an action against Shelton to recover damages for personal injuries.
The homeowners policy issued by the plaintiff in this case provides that there is no coverage for bodily injuries which are "expected or intended by the insured". Thus, although Shelton, the insured, was convicted of assault in the third degree under Penal Law § 120.00 (2) for recklessly causing physical injury to Naviloff, there is no insurance coverage under the terms of the policy if the resulting injury could reasonably be expected from the conduct ( cf., Allstate Ins. Co. v. Zuk, 78 N.Y.2d 41). The Third Department has stated that "personal injuries or property damages are expected if the actor knew or should have known there was a substantial probability that a certain result would take place" ( County of Broome v. Aetna Cas. Sur. Co., 146 A.D.2d 337, 340). The question is whether the damages "flow directly and immediately from an intended act, thereby precluding coverage", or whether the damages "accidentally arise out of a chain of unintended though expected or foreseeable events that occurred after an intentional act" ( Continental Ins. Co. v Colangione, 107 A.D.2d 978, 979). The court must look at the transaction as a whole in determining whether an accident has occurred ( see, McGroarty v. Great Am. Ins. Co., 36 N.Y.2d 358, 364).
Applying these principles to the particular facts of the instant case, it is clear that Naviloff's eye injuries were to be reasonably expected by Shelton when he punched him in the eye ( see, Monter v. CNA Ins. Cos., 202 A.D.2d 405). Since Shelton's conduct was not covered under the policy, the plaintiff is not obligated to defend or indemnify him.
Since the homeowners policy does not provide coverage for Shelton's criminal conduct herein, and since the "failure to have earlier disclaimed does not create coverage which the policy does not provide" ( Sears Oil Co. v. Merchants Ins. Group, 88 A.D.2d 753), the plaintiff was not estopped from disclaiming coverage in this case ( see, Pawelek v. Security Mut. Ins. Co., 143 A.D.2d 514; see also, John Hancock Prop. Cas. Ins. Co. v. Warmuth, 205 A.D.2d 587). Balletta, J.P., Sullivan, Santucci and Altman, JJ., concur.