Plaintiff MAKSIM DMITRIYEV (DMITRIYEV) obtained a $1,276,000 default

judgment, at an inquest, on July 9, 2009, against 16th STREET SATELLITE, INC. (16th

ST.), for personal injuries sustained in a July 16, 2006-incident at the retail food premises operated by 16th ST., at 1603 Avenue U, Brooklyn, New York. (Dmitriyev v Chen, et al., Index No. 12888/07, Supreme Court, Kings County). In the instant action, pursuant to Insurance Law § 3420 (b) (1), plaintiff DMITRIYEV seeks payment of the $1,276,000 default judgment from defendant TOWER INSURANCE COMPANY OF NEW YORK (TOWER), 16th ST.'s insurer.

Defendant TOWER moves for summary judgment and dismissal of plaintiff DMITRIYEV's complaint, pursuant to CPLR Rule 3212. First, TOWER claims that the commercial general liability insurance policy in effect on July 16, 2006 with 16th

ST. excluded coverage for bodily injury claims "arising from, due to or caused by . . . Assault and/or Battery committed by any insured, any employee of any insured, any patron or customer of the insured, or any other person." Second, TOWER asserts that coverage is barred because its insured, 16th ST., failed to promptly notify TOWER "as soon as practicable." Plaintiff DMITRIYEV opposes the instant motion, claiming: he did not allege that his injuries were the result of an intentional act; and; insured 16th ST.'s

notice to TOWER was "as soon as practicable."

The Court grants summary judgment to TOWER. Defendant TOWER's assault and battery exclusion in its insurance contract with 16th ST. is due to lack of coverage for the July 16, 2006-incident at 16th ST.'s premises. Therefore, TOWER'S intentional tort exclusion for assault and battery is dispositive of the instant motion and action. Thus, the Court does not have to address the "as soon as practicable" notice issue.

COMMERCIAL GENERAL LIABILITY COVERAGE PART

LIQUOR LIABILITY COVERAGE PART

1.This insurance does not apply to Bodily Injury or Property

Damage arising from, due to or caused by:

a.Assault and/or Battery committed by an insured, any

employee of any insured, any patron or customer of the

insured, or any other person; or [*2]

b.The failure to suppress or prevent any Assault and/or

Battery or any act or omission in connection with any

Assault and/or Battery; or

c.The negligent hiring, supervision or training of any

employee or agent of the insured with respect to the

events described in a. and b. above.

After plaintiff DMITRIYEV obtained his $1,276,000 default judgment against TOWER'S insured, plaintiff DMITRIYEV commenced the instant action on May 27, 2010. Defendant TOWER answered the summons and complaint on July 22, 2010, asserting various affirmative defenses, including the assault and/or battery exclusion and the failure of its insured to give TOWER notice of the incident "as soon as practicable."

CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632 [2d Dept 2010]).

Thus, the Court must examine the language used in the subject insurance policy, a contract between the parties. (Fieldston Prop. Owner's Assoc. Inc. v Hermitage Ins. Co.,

Inc., 16 NY3d 257, 264 [2011]; Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, [*3]Pa., 5 NY3d 157, 162 [2005]). "As with any contract, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning (see Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 520 [1996], and the interpretations of such provisions is a question of law for the court (see Bailey v Fish & Neave, 8 NY3d 523 [2007]; Chimart Assoc. v Paul, 66 NY2d 570 [1986])." (White v Continental Cas. Co., 9 NY3d 264, 267 [2007]). (See Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177 [2008]; Nisari v Ramjohn, 85 AD3d 987, 989 [2d Dept 2011]; Appleby v Chicago Title Ins. Co., 80 AD3d 546, 549 [2011]). Moreover, "[a] contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis a difference of opinion' (Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978], rearg. denied 46 NY2d 940 [1979])."

(Greenfield v Phillies Records, 98 NY2d 562, 569 [2002]).

Defendant insurer TOWER, to establish that it had no duty to defend or indemnify its insured,16th ST., pursuant to a policy exclusion has the burden of demonstrating that the exclusion is "unambiguously applicable to the pleaded allegations of the claims in issue." (Duncan Petroleum Transport Inc. v Aetna Ins. Co., 96 AD2d 942, 943 [2d Dept. 1983]), affd 61 NY2d 665 [1983]). The Court may relieve an insurer of its duty to defend and indemnify where the Court "can determine that no basis for recovery within the coverage of the policy is stated in the complaint." (Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364, 368 [1971]). (See Allstate Ins. Co. v Mugavero, 79 NY2d 153, 163 [1991]).

In the instant action, the assault and/or battery exclusion is clearly unambiguous and excludes coverage for injuries alleged to have resulted from an assault and/or battery. (Mount Vernon Fire Ins. Co. v Creative Housing, Ltd., 88 NY2d 347 [1996]; U.S. Underwriters Ins. Co. v Val-Blue Corp., 85 NY2d 821 [1995]. "If no cause of action would exist but for' the assault, it is immaterial whether the assault was committed by the insured or an employee of the insured on the one hand, or by a third party on the other." (Mount Vernon Fire Ins. Co. v Creative Housing, Ltd. at 353). (See WSTC Corp. v National Speciality Ins. Co., 67 AD3d 781, 783 [2d Dept 2009]); Desir v Nationwide Mut. Fire Ins. Co., 50 AD3d 942 [2d Dept 2008]; Anastasis v American Safety Indem. Co., 12 AD3d 628, 629 [2d Dept 2004]).

Plaintiff DMITRIYEV, in his opposition to the instant motion, argues that his stabbing was not intentional, despite his admission at the July 16, 2009-inquest that he was stabbed twice. Further, plaintiff DMITRIYEV argues that his injuries didn't result from an assault and/or battery, but from 16th ST.'s: negligent supervision at the premises; inadequate security at the premises; and, willful and wanton reckless disregard for plaintiff's safety. This argument lacks merit. Plaintiff's injuries would not have occurred "but for" the intentional battery committed upon him. "The plethora of claims surrounding [plaintiff 's] injury, including those for . . . negligent hiring and supervision'

are all based on' that assault and battery without which [plaintiff] would have no cause of action." (U.S. Underwriters Ins. Co. v Val-Blue Corp. at 823). "The language of the policy controls this question and while the theory pleaded may be the insured's negligent failure to maintain safe premises, the operative act giving rise to any recovery is the assault . . . Merely [*4]because the insured might be found liable under some theory of negligence does not overcome the policy's exclusion for injury arising from assault." (Mount Vernon Fire Ins. Co. v Creative Housing, Ltd. at 352).

Plaintiff DMITRIYEV fails to offer any evidence to demonstrate that the July 16,

2006 underlying incident at 16th ST.'s premises was not the product of an intentional assault and battery. "TOWER demonstrated its entitlement to judgment as a matter of law by establishing that the assault and battery exclusion is applicable to the claims asserted . . . in the underlying action." (Marina Grand, Inc. v Tower Ins. Co. of New York, 63 AD3d 1012, 1014 [2d Dept 2009]). (See Burgand v ESP Café, Inc., 84 AD3d 849 [2d Dept 2011]; WSTC Corp. v National Speciality Ins. Co. at 783). Therefore, defendant TOWER's motion for summary judgment is granted. The instant action is dismissed.

Accordingly,it is

ORDERED, that the motion of defendant TOWER INSURANCE COMPANY OF

NEW YORK for summary judgment and dismissal of plaintiff's complaint, pursuant to

CPLR Rule 3212, is granted.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACK

J. S. C.