Amherst & Clarence Insurance v. Cazenovia Tavern, Inc. , 90 A.D.2d 631 ( 1982 )

Appeal from an order of the Supreme Court at Special Term (Stone, J.), entered February 8, 1982 in Madison County, which denied plaintiffs’ motion for summary judgment. On April 4, 1979, Kenneth Gates was a passenger in an automobile owned and operated by one John Brown. Kenneth Gates was killed when Brown’s automobile was involved in an accident on Fenner Road in the Town of Cazenovia, New York. Thereafter, an action was commenced by the estate of Gates against Brown. That action was eventually settled and an action was then commenced by the estate of Gates against defendant Cazenovia Tavern to recover damages for injuries alleged to have occurred as a result of the negligent operation by Cazenovia Tavern of its premises. In this declaratory judgment action, plaintiffs seek a declaration that they are not obligated to defend Cazenovia Tavern in the negligence action brought against it. Plaintiffs moved for summary judgment. This motion was denied and the instant appeal ensued. The liability insurance policy issued by plaintiffs to defendant Cazenovia Tavern specifically excluded coverage for bodily injury arising out of the sale of alcoholic beverages. This exclusion, upon which the instant declaratory judgment action is based, includes both common-law negligence and Dram Shop Act violations. The allegations of both the original and amended complaint in the negligence action relate to a claim against Cazenovia Tavern arising out of its business of selling and serving alcoholic beverages. There is no allegation that the accident in question occurred on the premises of Cazenovia Tavern or that any employee of Cazenovia Tavern was present at the scene of the accident. Rather, all the actions complained of are excluded by the terms of the policy of insurance (see Cole’s Rest. v North Riv. Ins. Co., 85 AD2d 894). Plaintiffs’ motion for summary judgment, therefore, should have been granted. Order reversed, on the law, with costs, motion for summary judgment granted, and judgment directed to be entered declaring that plaintiffs are not obligated to defend defendant Cazenovia Tavern in the negligence action brought against it by the estate of Kenneth Gates. Mahoney, P. J., Sweeney, Kane, Casey and Yesawich, Jr., JJ., concur.