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Metro. Prop. & Cas. Ins. Co. v. Burby

Insurer Has No Duty to Defend, Indemnify; Injury Incident Not an 'Occurrence'

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Papers Considered: NYSCEF Doc Nos. 8-19, 22, 25-32, 34-36. By this action, plaintiff Metropolitan Property and Casualty Insurance Company (“MetLife”) seeks a declaration that it is not obliged to defend or indemnify defendant Jesse J. Burby in a personal injury lawsuit brought against him by defendant Brett J. Bukowski. In the underlying action, Bukowski alleges that he was injured in a workplace incident in which Burby, a fellow employee, discharged a nail gun into his arm. Following joinder of issue and prior to the taking of any discovery, MetLife moves for summary judgment on its complaint (see NYSCEF Doc No. 1). Bukowski opposes the motion and cross-moves for a declaration that MetLife is obliged to defend and indemnify Burby in the underlying action.1 BACKGROUND In his complaint in the underlying action (see NYSCEF Doc No. 19 ["UA Complaint"]; Bukowski v. Burby, Albany County Index No. 900021-21), Bukowski alleges that Burby, a fellow Albany County employee, accosted him in the bathroom of their work facility during the workday (see id.,

3-4, 7). Burby, who “would often engage in horseplay and/or other pranks with other employees, which included hitting and/or unwanted touching” (id., 5), allegedly “discharged a nail gun which caused a nail to strike…Bukowski’s right arm” (id.,

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