Opinion
July 12, 1989
Appeal from the Supreme Court, Erie County, Rossetti, J.
Present — Denman, J.P., Boomer, Green, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs, defendant's motion granted and complaint dismissed. Memorandum: Special Term erred in denying defendant's motion to dismiss the complaint in this action to compel the defendant insurer to pay an unsatisfied default judgment. The subject homeowner's insurance policy specifically excluded coverage for bodily injuries "expected or intended by the insured". Here, the insured's conviction for first degree assault conclusively established that the injuries plaintiffs received were intentionally caused by the insured and, therefore, plaintiffs are collaterally estopped from relitigating the issue of intent in this action (see, S.T. Grand, Inc. v City of New York, 32 N.Y.2d 300, 305; Bergen v Shapiro, 129 A.D.2d 669; Hooks v Middlebrooks, 99 A.D.2d 663). We reject Special Term's conclusion that plaintiffs did not have a full and fair opportunity to litigate the issue of intent in the criminal action. Plaintiffs, as judgment creditors seeking to enforce the policy, have no greater rights than the insured under the policy (see, Spadaro v Newark Ins. Co., 21 A.D.2d 226, affd 15 N.Y.2d 1000). Here, unlike Gilberg v Barbieri ( 53 N.Y.2d 285), where defendant was charged with the petty offense of harassment, the insured was charged with several felonies including attempted murder, robbery and first degree assault. Thus, there can no be doubt that the insured had a full and fair opportunity to litigate the issue of intent (see, Merchants Mut. Ins. Co. v Arzillo, 98 A.D.2d 495). Plaintiffs' reliance upon Utica Mut. Ins. Co. v Cherry ( 38 N.Y.2d 735) is misplaced because there the insurer's duty to defend was at issue, whereas here, only the duty to pay is in question. There can be no duty to indemnify where the loss is not covered under the policy (see, Servidone Constr. Corp. v Security Ins. Co., 64 N.Y.2d 419; New York Cas. Ins. Co. v Ward, 139 A.D.2d 922; Holmes v Allstate Ins. Co., 33 A.D.2d 96).