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FISTICUFFS FRACAS

FISTICUFFS FRACAS

January 25
08:18 2021

FISTICUFFS FRACAS

Anthony Scalzo, allegedly in defense of his wife, struck his neighbor, Robert Salerno, once or twice with his fist. The incident occurred on or near Scalzo’s property; and although criminal charges against Scalzo were dismissed, Salerno sued Scalzo.

The first cause of action alleged that Scalzo “assault[ed] [Salerno] by seizing him, striking him and punching him in the face and in particular the left eye, among other areas of the body” and that those actions were “willful, intentional, unwarranted and without just cause or provocation.” The second cause of action alleged that Scalzo “negligently struck [Salerno] so as to sustain serious injury” and that Scalzo “acted in a reckless, careless and negligent manner toward [Salerno].”

Scalzo sought coverage under his homeowners policy with Central Co-Operative Insurance Company, but Central denied coverage based on an exclusion providing that the policy did not apply to “liability … caused intentionally by or at the direction of any insured.” Scalzo subsequently commenced an action seeking a declaration that Central was obligated to defend and indemnify him in the underlying action.

The Supreme Court, Oneida County, granted Scalzo’s motion for summary judgment and found that Central had a duty to defend him. Central appealed.

On appeal, the court agreed with Central that it established that the exclusion for intentional acts was applicable and that it had no duty to defend or indemnify Scalzo in the underlying action. With respect to the second cause of action in the Salerno complaint, the court stated that the complaint contained no more than a conclusory characterization of Scalzo’s conduct as negligent without any supporting factual allegations. Thus the complaint did not contain sufficient allegations to avoid the exclusion. Further, the court said, Scalzo failed to provide evidentiary support for the conclusory characterization of his conduct as negligent or an explanation of how the intrinsically intentional act of assault could be negligently performed. The judgment of the lower court was reversed.

Scalzo v. Central Co-Operative Insurance Company—Supreme Court, Appellate Division, Fourth Department, New York—August 20, 2020—CA 19-01201.

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