SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

755 

CA 11-00107 

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ. 

 

GRAY-LINE OF NIAGARA FALLS, INC., 

PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

CINCINNATI INSURANCE COMPANIES, 

DEFENDANT-APPELLANT, 

AND ANN MARIE TRUSSO, DEFENDANT-RESPONDENT. 

 

GOLDBERG SEGALLA LLP, BUFFALO (BRIAN R. BIGGIE OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR

PLAINTIFF-RESPONDENT.

CREIGHTON, JOHNSEN & GIROUX, BUFFALO (ANNA FALICOV OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order and judgment (one paper) of the Supreme

Court, Erie County (Frank A. Sedita, Jr., J.), entered October 28,

2010 in a declaratory judgment action. The order and judgment granted

plaintiff’s motion for summary judgment and denied the cross motion of

defendant Cincinnati Insurance Companies for summary judgment. 

It is hereby ORDERED that the order and judgment so appealed from

is unanimously reversed on the law without costs, plaintiff’s motion

is denied, the cross motion is granted and judgment is granted in

favor of defendant Cincinnati Insurance Companies as follows:

It is ADJUDGED and DECLARED that defendant Cincinnati

Insurance Companies has no duty to defend or indemnify

plaintiff in the underlying action in federal court. 

Memorandum: Plaintiff commenced this action seeking judgment

declaring that Cincinnati Insurance Companies (defendant) is obligated

to defend and indemnify it in the underlying action commenced in

federal court by defendant Ann Marie Trusso, one of plaintiff’s

employees. In that underlying action, Trusso sought damages for,

inter alia, injuries sustained by her when she was sexually assaulted

by a person also employed by plaintiff. We agree with defendant that

Supreme Court erred in granting plaintiff’s motion for summary

judgment against defendant. The commercial liability policy issued by

defendant to plaintiff excludes coverage where “[a]n ‘employee’ of the

insured sustain[s a bodily injury] in the ‘workplace.’ ” There is no
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CA 11-00107 

dispute that Trusso was plaintiff’s employee at the time of the

incident and that she was working at the tour booth pursuant to

plaintiff’s directive when the incident occurred. Thus, the exclusion

applies as a matter of law (see generally Zuckerman v City of New

York, 49 NY2d 557, 562). Plaintiff and Trusso argue that coverage is

nonetheless available because Trusso’s injuries were unrelated to the

performance of employment duties. We note that there is also a

separate policy exclusion for bodily injuries to “[a]n ‘employee’ of

the insured arising out of the performance of duties related to the

conduct of the insured’s business.” Inasmuch as the policy separately

excludes coverage for injuries that occur in the workplace as well as

injuries that are work-related, the fact that Trusso’s injuries were

unrelated to the performance of employment duties is of no moment (see

generally Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh,

Pa., 5 NY3d 157, 162, rearg denied 5 NY3d 825; Progressive Halcyon

Ins. Co. v Giacometti, 72 AD3d 1503, 1506). 

Entered: June 10, 2011 Patricia L. Morgan

Clerk of the Court