Opinion
2002-08639
Argued September 26, 2003.
November 17, 2003.
In an action for a judgment declaring that the defendant Allcity Insurance Company, s/h/a Empire Insurance Company, is obligated to defend and indemnify the defendants in two underlying actions entitled Singh v. Citygas and Estate of Satinderjit Singh v. Citygas, pending in the Supreme Court, Kings County under Index Nos. 43848/99 and 6207/00, respectively, the plaintiffs appeal from an order of the Supreme Court, Kings County (R. Rivera, J.), dated August 15, 2002, which denied their motion for summary judgment and granted the defendant's cross motion for summary judgment.
Lawrence P. Biondi, New York, N.Y., for appellants.
Gilroy Downes Horowitz Goldstein, New York, N.Y. (Michael M. Horowitz and Thomas Dillon of counsel), for respondent.
Before: NANCY E. SMITH, J.P., STEPHEN G. CRANE, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that Allcity Insurance Company s/h/a Empire Insurance Company, is not obligated to defend and indemnify the defendant in the underlying actions.
Contrary to the plaintiffs' contentions, the Supreme Court properly granted the defendant's cross motion for summary judgment. The acts of Gurmeet Singh Dhinsa (hereinafter Dhinsa), an employee of corporate entities in the underlying actions, do not fall within the coverage provisions of the subject garagekeepers' insurance policy as they were unrelated to the garage business ( see Empire Group Allcity Ins. Co. v. Cicciaro, 240 A.D.2d 362, 363). Moreover, Dhinsa's actions were intrinsically intentional and thereby excluded from coverage ( see Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 161; RJC Realty Holding Corp. v. Republic Franklin Ins. Co., 303 A.D.2d 573, 574; Monter v. CNA Ins. Cos., 202 A.D.2d 405, 406). Further, the only policy that named one of Dhinsa's corporate entities expired prior to the alleged tortious acts. Accordingly, the Supreme Court properly granted the defendant's cross motion for summary judgment.
Since this is an action for a declaratory judgment, the Supreme Court should have directed the entry of a judgment declaring that Allcity Insurance Company, s/h/a Empire Insurance Company, is not obligated to defend or indemnify the defendant in the underlying actions ( see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
The plaintiffs' remaining contention is academic in light of our determination.
SMITH, J.P., CRANE, MASTRO and RIVERA, JJ., concur.