Opinion
May 28, 1991
Appeal from the Supreme Court, Bronx County (Douglas McKeon, J.).
Plaintiff Valle was injured on October 19, 1985 when he was struck by an uninsured van driven by the defendant George Blackwell. Plaintiff, acting as a good Samaritan, had interceded in an argument between defendant Blackwell and a woman, Marie Ellis. Thereafter, as plaintiff and the woman were crossing East 166th Street in Bronx County, both were struck by the van. Plaintiff was severely injured.
Subsequent to the occurrence, defendant Blackwell was convicted of two counts of assault in the first degree (Penal Law § 120.10) for the striking of plaintiff Valle and Ms. Ellis. Section 120.10 (1) of the Penal Law states that a person is guilty of assault in the first degree when "[w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument". The finding of intent in the criminal action precludes a finding here that the act was the result of an accident rather than intent. (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659.) Plaintiff could recover here only if the act had been caused by an accident rather than by an intentional act. (Insurance Law art 52.)
Accordingly, we reverse.
Concur — Milonas, J.P., Kupferman, Asch, Kassal and Smith, JJ.