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MOUNT VERNON FIRE INS. CO. v. DLRH ASSOCS.

June 5, 1997

MOUNT VERNON FIRE INSURANCE COMPANY, Plaintiff, against DLRH ASSOCIATES, KETTLEY HENRY, and WADE GOLDEN, Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Plaintiff Mount Vernon Fire Insurance Company ("Mt. Vernon") moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and for a declaratory judgment stating that Mt. Vernon has no duty to defend or indemnify defendant DLRH Associates ("DLRH") in the pending state action Kettley Henry v. DLRH Associates and Wade Golden. *fn1" Defendant DLRH opposes this motion and cross-moves for summary judgment and for a declaratory judgment stating that Mt. Vernon does have a duty to defend and indemnify DLRH.

 In an Opinion and Order dated May 6, 1997, I found that DLRH had failed to notify Mt. Vernon of Kettley Henry's accident within a reasonable time under the circumstances. I therefore granted plaintiff's motion for summary judgment and denied defendant's cross-motion for summary judgment. However, I withdrew the May 6, 1997 Opinion and Order on May 7, 1997, because DLRH had not had an opportunity to brief the issue of notice. I have now received Supplemental Memoranda of Law and Statements of Fact Pursuant to Local Rule 3(g) now Local Rule 56.1 from both DLRH and plaintiff relating to this issue. For the reasons set forth below, plaintiff's motion is granted, defendant's motion is denied.

 I. Applicable Legal Standard

 A party is entitled to summary judgment when there is "no genuine issue of material fact" and the undisputed facts warrant judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(c); Celotex v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The burden of demonstrating the absence of a material factual dispute rests on the moving party. See Gallo v. Prudential Residential Svcs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). Once that burden is met, the non-moving party must present "significant probative supporting evidence" that a factual dispute exists. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 249.

 The court's role is not to try issues of fact, but rather to determine whether issues exist to be tried. See Balderman v. United States Veterans Admin., 870 F.2d 57, 60 (2d Cir. 1989); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987). All ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. See Anderson, 477 U.S. at 255; Donahue, 834 F.2d at 57, 60. If there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact, summary judgment is improper. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).

 II. Factual Background

 Applying the above standards, the undisputed facts of this case are as follows. On November 17, 1992, Mt. Vernon issued a commercial liability policy (the "Policy") to DLRH *fn2" to provide coverage for hotel operations at premises located on West 79th Street in New York City (the "Hotel"). The Policy included the following assault and battery exclusion and notice provision:

 
It is agreed that no coverage shall apply under this policy for any claim, demand or suit based on Assault and Battery, and Assault and Battery shall not be deemed an accident, whether or not committed by or at the direction of the insured. . . .

 See Plaintiff's Statement of Facts Pursuant to Local Rule 3(g) ("Plaintiff's 3(g) Statement"), dated November 15, 1995, at PP 3-4.

 On December 12, 1992, Henry was a resident at the Hotel. Henry now claims that DLRH negligently permitted her ex-boyfriend Wade Golden ("Golden") to enter the hotel, that as a result of DLRH's negligence she was placed in fear of her safety because of Golden's presence, and that in attempting to escape from Golden she fell from the third floor of the hotel and sustained serious injuries for which DLRH is liable. See Plaintiff's ...


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