since 1979 the courts of New York have repeatedly confirmed that a tenant may recover under a claim of negligence from a landlord for the criminal acts of a third party if those acts were reasonably foreseeable and preventable, and such actions could no longer be considered rare in 1992. See Jacqueline S. by Ludovina S., 598 N.Y.S.2d at 162-63; Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 830, 467 N.E.2d 493 (1984); Nallan, 429 N.Y.S.2d at 613. See generally Annotation, Landlord's Liability for Failure to Protect Tenant from Criminal Act of Third Person, 43 A.L.R.5th 207 (1996); Prosser and Keeton on Torts § 63 at 442-43 (5th ed. 1984) (citing cases).
These two cases therefore merely confirm a proposition that I have already stated: where no facts exist to indicate that the insured might be liable for an incident on its premises, the insured has no obligation to notify its insurer of that incident. Yet as explained above, the events leading to Henry's injuries suggest that the Hotel's failure to bar Golden from the building after Henry requested that it do so might have played a central role in the December 12, 1992 incident. While it may be true that Beit had no knowledge of the Hotel's role in the event, this is so only because he failed to ask his Hotel manager about the incident.
New York courts have repeatedly rejected conclusory allegations by an insured that its decision not to notify its insurer was based on a "good faith" belief of nonliability. This is especially true in cases where the insured fails to make any investigation of the incident or loss. See, e.g., White by White v. City of New York, 81 N.Y.2d 955, 598 N.Y.S.2d 759, 760-61, 615 N.E.2d 216 (1993) (without investigation there can be no conclusory allegation of good-faith belief in nonliability); Public Service Mut. Ins. Co. v. Levy, 87 Misc. 2d 924, 387 N.Y.S.2d 962, 966 (Sup. Ct. N.Y. Co. 1976) ("In order for a belief of non-liability to excuse late notice, the insured must act reasonably, which in turn requires that its belief be implemented by whatever investigation be made under the circumstances by a prudent man"), aff'd, 57 A.D.2d 794, 395 N.Y.S.2d 1 (1st Dep't 1977). DLRH has presented no evidence that raises a genuine issue of fact as to whether its failure to investigate the December 12, 1992 incident and to notify Mt. Vernon could be found to be reasonable under an objective standard. Mt. Vernon may therefore disclaim liability on this basis, and is entitled to judgment as a matter of law.
B. The Assault and Battery Exclusion
As the notice provision entitles Mt. Vernon to a declaratory judgment stating that it has no duty to defend or indemnify DLRH, I need not address the assault and battery exclusion to rule on the instant motions. However, the parties have fully briefed the issue, and I address it now for efficiency's sake. If my decision regarding the notice provision is reversed on appeal, the parties' renewed motions for summary judgment based on the assault and battery exclusion must be denied.
As stated above, the Policy expressly states 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".
While DLRH argues that this provision of the Policy excludes only those injuries that arise out of conduct that constitutes both an assault and a battery, I disagree. This Court has recently interpreted this exact language in another insurance policy to exclude coverage for injuries arising from conduct that constitutes an assault or a battery. See Downtown Bar & Grill, Inc. v. Sphere Drake Ins. Co., 1997 U.S. Dist. LEXIS 4977, *14, 1997 WL 188139, *5 (S.D.N.Y. 1997) ("the phrase 'assault and battery' is a legal term of art which encompasses both the common law torts of assault and battery."). Thus, the Policy will not cover DLRH if Henry's injuries were caused by an assault or a battery.
The parties dispute whether Henry's injuries were the result of an assault or a battery. Plaintiff argues that "the injury to Ms. Henry clearly arose out of or was based on a criminal assault." Plaintiff's Reply Memorandum of Law ("Plaintiff's Reply") at 4. DLRH contends that Golden's actions cannot be deemed an assault or a battery because, inter alia, Golden lacked the necessary intent to commit either tort, and because Henry does not specifically allege that Golden came into physical contact with her.
Summary judgment on this issue is inappropriate because the parties cannot agree on one version of the events that occurred in Henry's hotel room on December 12, 1992. This is not entirely surprising as the only sources of evidence regarding this incident are Henry and Rodriguez, who do not agree on material facts regarding the incident.
For example, drawing on Henry's deposition testimony, DLRH argues that Golden never actually entered Henry's room. See, e.g., Tr. at 16 ("Q: Did you ever see Mr. Golden on December 12, 1992? A: No."). DLRH also argues that Henry's testimony indicates that she voluntarily went onto the window ledge, and that her injuries resulted from her falling from that ledge. Specifically, Henry stated:
. . . I was watching TV and I heard the door knocking and then I hear, Open the door, open the door, and I tried to go to get away because I was scared of him and I tried to get to the window or -- to the window, and maybe I slipped and fall [sic.] when I tried to get away.