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MONCADA v. RUBIN-SPANGLE GALLERY

November 4, 1993

RENE MONCADA, Plaintiff,
v.
RUBIN-SPANGLE GALLERY, INC., and LYNN RUBIN, Defendants. RUBIN-SPANGLE GALLERY, INC., and LYNN RUBIN, Third-Party Plaintiffs, v. AETNA CASUALTY AND SURETY COMPANY, JOSEPH WASSERSTEIN, WASSERSTEIN BROS., INC., LEON SADOFF AND COLVU EAST ENTERPRISES, INC., Third-Party Defendants.



The opinion of the court was delivered by: MORRIS E. LASKER

 LASKER, D.J.

 Rene Moncada, a visual artist, sues Rubin-Spangle Gallery, Inc. ("Gallery") and its proprietor Lynn Rubin ("Rubin") for an alleged violation of the Visual Artists Rights Act (17 U.S.C. § 106A), and for malicious assault, interference with copyright and conversion.

 In turn, the Gallery and Rubin filed a third-party complaint naming, among others, Aetna Casualty and Surety Company ("Aetna"). The Gallery and Rubin claim that their commercial general liability policy with Aetna covers the cause of action for malicious assault.

 Aetna now moves to dismiss the third-party complaint against it on the grounds that the Gallery's insurance policy does not cover the acts complained of in Moncada's cause for action for malicious assault and, correspondingly, that Aetna has no duty to defend the action.

 I.

 The following facts are not disputed: Lynn Rubin operates the Rubin-Spangle Gallery, a New York corporation located at 395 West Broadway in New York City. Rene Moncada is a visual artist who paints his signature wall murals ("I am the best artist, Rene") on buildings in the Soho area of Manhattan. In June of 1991, Moncada obtained permission from the tenant of 397 West Broadway to paint such a mural on an exterior wall of the building. The wall was located directly opposite the entrance to Rubin's Gallery. A day after Moncada completed the mural, Rubin personally supervised an employee to paint over the wall. When Moncada discovered that the mural was about to be painted over, he attempted to film the act on a camcorder. As Moncada looked through the viewfinder, Rubin placed her hand on the lens to prevent him from videotaping.

 Although the parties differ as to how much force Rubin used to block the camcorder, they agree for the purposes of this motion that Rubin did touch the camcorder in an effort to prevent Moncada from videotaping. Moncada's Second Amended Complaint alleges that the "assault injured plaintiff's eye and otherwise caused him pain and suffering."

 Aetna moves to dismiss the third-party complaint against it, arguing that the incident does not constitute an "occurrence" covered by the policy because the policy defines the term "occurrence" as "an accident." Rubin's touching of the camcorder, Aetna points out, was intentional rather than accidental. Aetna also contends that under the clause which excludes injuries "expected or intended from the standpoint of the insured," this incident is not covered because Rubin either "expected or intended" Moncada's alleged injuries.

 In their joint memorandum opposing this motion, the Gallery and Rubin do not address Aetna's contention that the incident is not an "accident" and, therefore, is not a covered occurrence. Rather, they focus entirely on the policy exclusion point, arguing that: (1) the exclusion does not apply because Rubin did not intend to injure Moncada and (2) the claim is covered by the policy because it constituted an injury resulting from "the use of reasonable force to protect person or property," and such injuries are excepted from the exclusion.

 II.

 Is the alleged assault a covered occurrence?

 Paragraph 9 of the "Definitions" section of the Aetna policy states: "'Occurrence' means an accident, including continuous or repeated exposure to substantially the same general harmful conditions."

 The New York Court of Appeals has held that the term "accident" should be construed "as would the ordinary man on the street or ordinary person when he purchases and pays for insurance." Arthur A. Johnson Corp. v. Indemnity Ins. Co., 7 N.Y.2d 222, 227, 196 N.Y.S.2d 678, 682, 164 N.E.2d 704 (1959) (construing liability insurance policy of a building contractor). The Court has described an "accident" as an event which "from the point of view of the insured . . . was unexpected, unusual and unforeseen." Miller ...


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