Royal Indemnity Co. v. Belcer

Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motion of plaintiff for summary judgment seeking a declaration that it is not obligated to defend or indemnify its insured, Mark Schukraft, in a personal injury action arising from an altercation on November 9, 1993. Plaintiff declined coverage based on Schukraft’s conviction after trial of intentional assault in the third degree in connection with the incident. Insurance Law § 3420 (d) requires an insurer disclaiming coverage to give written notice as soon as reasonably possible, and there is an issue of fact whether the explanation by plaintiff for its delay in this case was reasonable. We agree with plaintiff, however, that defendants are estopped from relitigating the issue of Schukraft’s intent (see, D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 666-668). Schukraft was charged and convicted in Buffalo City Court with intentional assault in the third degree (Penal Law § 120.00 [1]). (Appeal from Order of Supreme Court, Erie County, Notaro, J.—Sum-

*900mary Judgment.) Present—Green, J. P., Pine, Wisner, Balio and Fallon, JJ.