Manuszewski v. Merchants Mutual Insurance

Order unanimously affirmed, without costs. Memorandum: Under any interpretation the allegations of the complaint seeking damages against the plaintiff clearly come within the exclusion of the policy. There exists no factual basis or legal theory which may be developed at trial arising out of this incident that would obligate the defendant insurance company to pay and, therefore, there is no duty to defend (Lionel Freedman, Inc. v Glen Falls Ins. Co., 27 NY2d 364; Vale v Yawarski, 79 Misc 2d 320; cf. International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325). (Appeal from order of Erie Supreme Court—declaratory judgment.) Present—Marsh, P. J., Cardamone, Dillon, Hancock, Jr., and Witmer, JJ.