| Elashker v Medical Liab. Mut. Ins. Co. |
| 2007 NY Slip Op 09638 [46 AD3d 966] |
| December 6, 2007 |
| Appellate Division, Third Department |
| Amin R. Elashker, Appellant, v Medical Liability Mutual InsuranceCompany, Respondent. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (William J. DeCaire ofcounsel), for respondent.
Rose, J. Appeal from an order of the Supreme Court (Bradley, J.), entered November 2, 2006in Ulster County, which, among other things, granted defendant's motion for summary judgmentdismissing the complaint.
When plaintiff was accused of sexually assaulting a nurse employed by the nursing homewhere he was an attending physician, he referred the nurse's claim to defendant, his medicalmalpractice insurance carrier. Defendant investigated and disclaimed coverage. Plaintiff thencommenced this action to obtain a judgment declaring that his malpractice insurance covered thenurse's claim because, while she was a coworker at the time of the alleged assault, she had alsobeen his patient and she had testified in her underlying action that he had been palpating herthyroid when the attack occurred. Defendant moved for summary judgment dismissing thecomplaint on the ground that its policy afforded no coverage of the claim in the nurse'sunderlying action alleging sexual assault. Supreme Court granted defendant's motion, promptingthis appeal by plaintiff.
It is well settled that "[t]he duty of an insurer to defend its insured arises whenever theallegations within the four corners of the underlying complaint potentially give rise to a coveredclaim, or where the insurer 'has actual knowledge of facts establishing a reasonable possibility ofcoverage' " (Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175[1997], [*2]quoting Fitzpatrick v American Honda MotorCo., 78 NY2d 61, 67 [1991]; seeMaroney v New York Cent. Mut. Fire Ins. Co., 10 AD3d 778, 780 [2004], affd 5NY3d 467 [2005]; Physicians' Reciprocal Insurers v Loeb, 291 AD2d 541, 542 [2002]).Here, on its motion for summary judgment, defendant sustained its initial burden to show thatthere was no coverage by citing its policy which described the claims covered as only those"brought against [plaintiff] because of Professional Services which [he] provided (or should haveprovided)." Defendant also showed that the nurse had not alleged such a claim because thecomplaint in her underlying action against her employer and others, including plaintiff, describedonly sexual assaults perpetrated by plaintiff as a coworker while she was performing her duties ather place of employment.
In response, plaintiff failed to raise a question of fact as to whether the claim of sexualassault came within the coverage of defendant's policy. While plaintiff submitted a few pages ofdeposition testimony in which the nurse described an intentional sexual contact that occurredwhile plaintiff was purporting to palpate her thyroid in the nursing home conference room wherethey had gone to work on patient files, there is no evidence that she ever complained about hisprofessional services or asserted that his conduct was professional malpractice. In suchcircumstances, the thyroid examination described by the nurse merely provided the occasion forthe alleged assault and did not convert plaintiff's acts into professional malpractice (seePhysicians' Reciprocal Insurers v Loeb, 291 AD2d at 544; compare Chung v PhysiciansReciprocal Insurers, 221 AD2d 907 [1995]). There being no coverage, any failure to timelydisclaim is academic (see State Farm Mut. Auto. Ins. Co. v Bentley, 262 AD2d 739, 741[1999]; Smedes v Liberty Mut. Ins. Co., 206 AD2d 814, 815 [1994], lv denied 84NY2d 812 [1994]).
Crew III, J.P., Peters, Mugglin and Kane, JJ., concur. Ordered that the order is affirmed, withcosts.