Cid v Kinsale Capital Group, Inc., 2024 NY Slip Op 02029 [226 AD3d 525]

April 16, 2024

Appellate Division, First Department

[*1]

Jhon Cid, Appellant,

v

Kinsale Capital Group, Inc., Also Known as Kinsale Insurance Company, Respondent.

Ronald P. Hart, P.C., New York (Ronald P. Hart of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (James E. d’Auguste, J.), entered March 3, 2023, which granted defendant’s motion to dismiss and for summary judgment dismissing the complaint, and denied plaintiff’s cross-motion for summary judgment declaring that defendant was obligated to provide a defense and indemnification in the underlying personal injury action, unanimously modified, on the law, to declare that defendant was not obligated to provide a defense and indemnification in the underlying personal injury action, and otherwise affirmed, without costs.

The court properly declined to find that defendant Kinsale Insurance Company had a duty to defend or indemnify based on the “assault and battery” exclusion in the policy issued to La Chimosa a/k/a Cliff New York, a bar and restaurant. The complaint’s negligence allegations could not survive because those claims are deemed to have arisen from the assault and are thus subject to the assault and battery exclusion ( see Metalios v Tower Ins. Co. of N.Y ., 77 AD3d 471 , 472 [1st Dept 2010]; see also Mount Vernon Fire Ins. Co. v Creative Hous ., 88 NY2d 347, 353 [1996]; Tonoga, Inc. v New Hampshire Ins. Co ., 201 AD3d 1091 , 1093-1094 [3d Dept 2022]).

We modify solely to declare in favor of defendant ( see Lanza v Wagner , 11 NY2d 317, 334 [1962], cert denied 371 US 901 [1962]). Concur—Kern, J.P., Singh, Scarpulla, Mendez, Higgitt, JJ..