United States District Court, E.D. New York
MEMORANDUM & ORDER
M. GOLD United States Magistrate Judge.
Insurance Co. (“Northfield”) brings this action
seeking a judgment declaring that it has no duty to defend or
indemnify defendants Queen's Palace, Inc.
(“Queen's Palace”), Rosewood Realty, LLC
(“Rosewood”), and NYC Kazi Office Inc.
(“NYC Kazi”) (collectively,
“defendants”), in an underlying action filed in
Supreme Court, Kings County, by defendant Vicenta Moran as
Administratrix of the Estate of Eduardo Rojas (the
“Estate”). See Compl. ¶ 1, Docket
Entry 1. In the underlying action, the Estate seeks damages
for the wrongful death of Eduardo Rojas (the
“decedent”), who was allegedly “assaulted,
dragged, pistol whipped[, ] and killed” on July 26,
2014, while outside and waiting to enter a nightclub located
at 37-11 57th Street, Woodside, New York (the
parties have consented to the exercise of jurisdiction by a
United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). See Docket Entry 25. Plaintiff now moves for
summary judgment. Docket Entry 36. I heard oral argument on
the motion on November 10, 2016. Docket Entry 46. Counsel for
Queen's Palace and NYC Kazi elected not to appear for the
argument. Docket Entry 45. I reserved decision to afford
counsel for these parties an opportunity to be heard after
reviewing the oral argument transcript. See Order
dated November 9, 2016. Counsel for these parties then
submitted a post-argument letter brief. Docket Entry 48.
considered the parties' written submission and oral
arguments. For the reasons that follow, plaintiff's
motion for summary judgment is granted.
following facts present the evidence in the light most
favorable to defendants. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
issued a general commercial liability insurance policy to
Queen's Palace (the “policy”) covering the
period from March 11, 2014 to March 11, 2015. Pl. R. 56.1
¶ 1. The policy provides liability coverage for suits
claiming damages because of “bodily injury, ”
defined to include death, caused by an “occurrence,
” which the policy defines as an accident. Pl. R. 56.1
¶ 2. The policy limits liability to $1 million for each
occurrence and $2 million in the aggregate. First Crecelius
Aff. ¶ 2.
endorsement, the policy contains an Assault and Battery
Exclusion, which provides, in pertinent part:
1. The following exclusion is added to Paragraph 2.,
Exclusions, of Section I - Coverages - Coverage A Bodily
Injury and Property Damage Liability: Assault or Battery
“Bodily injury” or “property damage”
arising out of any act or “assault” or
“battery” committed by any person, including any
act or omission in connection with the prevention or
suppression of such “assault” or
2. The following is added to the DEFINITIONS Section:
“Assault” means any attempt or threat to inflict
injury to another, including any conduct that would
reasonably place another in apprehension of such injury.
“Battery” means any intentional, reckless or
offensive physical contact with, or any use of force against,
a person without his or her consent that inflicts some
injury, regardless of whether the resulting injury
infl[icted] is intended or expected.
of Kenneth Kupec (“Kupec Aff.”) at NIC 000556,
Docket Entry 36-13; see also ...