Opinion
October 6, 1986
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Order reversed, on the law, with costs, motion granted, and it is declared that plaintiff Hanover Insurance Co. has a duty to defend the defendant Richard Sage in the aforementioned action.
Special Term properly found that there was a factual issue as to whether the claim fell under an exclusionary provision of the respondent's insurance policy. Since it cannot "be concluded as a matter of law that there is no possible factual or legal basis on which [the insurer] might eventually be held to be obligated to indemnify [the insured] under any provision of the insurance policy" (Spoor-Lasher Co. v Aetna Cas. Sur. Co., 39 N.Y.2d 875, 876; see also, Seaboard Sur. Co. v Gillette Co., 64 N.Y.2d 304), the insurer has a duty to defend. Thus Special Term erred when it denied the defendant Sage's motion for partial summary judgment declaring that the plaintiff Hanover Insurance Co. had a duty to defend him. Bracken, J.P., Brown, Niehoff and Eiber, JJ., concur.