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Northfield Insurance Co. v. Queen's Palace, Inc.

United States District Court, E.D. New York

May 10, 2017

NORTHFIELD INSURANCE COMPANY, Plaintiff,
v.
QUEEN'S PALACE, INC., ROSEWOOD REALTY, LLC, NYC KAZI OFFICE INC., and VICENTA MORAN, as Administratrix of the Estate of Eduardo Rojas, Defendants.

          MEMORANDUM & ORDER

          STEVEN M. GOLD United States Magistrate Judge.

         Introduction

         Northfield 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 “premises”). Id.

         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.

         I have considered the parties' written submission and oral arguments. For the reasons that follow, plaintiff's motion for summary judgment is granted.

         Facts

         The following facts present the evidence in the light most favorable to defendants.[1] See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

         Northfield 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.

         By 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 “battery”.
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.

         Affidavit of Kenneth Kupec (“Kupec Aff.”) at NIC 000556, Docket Entry 36-13; see also ...


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