10039. 20-35 86TH STREET REALTY, LLC, plf-ap, v. TOWER INSURANCE COMPANY OF NEW YORK, def-res — Razis & Ross, P.C., Astoria (George J. Razis of counsel), for ap — Mound Cotton Wollan & Greengrass, New York (Tania A. Gondiosa of counsel), for res — Order, Supreme Court, New York County (Debra A. James, J.), entered April 17, 2012, which granted defendant’s motion to dismiss the complaint to the extent of staying the action pending the determination of the criminal case against the alleged arsonist, and denied plaintiff’s motion to dismiss the second, third, fourth, fifth and sixth affirmative defenses, unanimously modified, on the law, to grant plaintiff’s motion as to the second, third and sixth affirmative defenses, and to vacate the stay, and otherwise affirmed, without costs.
Plaintiff building owner seeks a judgment declaring that defendant has an obligation to defend and indemnify it in connection with a building fire that, inter alia, left several people dead or injured. Following a police and fire department investigation, an individual was arrested and indicted on charges of, inter alia, arson in the fourth degree and assault in the first and second degrees. Defendant disclaimed coverage under the liability insurance policy it issued to plaintiff on the ground that plaintiff’s claims apparently involved bodily injury arising from an assault or battery committed by the accused arsonist and that the insurance does not apply to bodily injury arising from assault and/or battery or any act or omission in connection with any assault and/ or battery. The motion court stayed this action pending determination of the criminal action on the ground that that determination is necessary to a determination of the applicability of the assault and battery exclusion to plaintiff’s claims.
