Michael Allen et al., Respondents, v. Thimiana Restaurant Corp. et al., Defendants, and Merchants Mutual Insurance Company et al., Appellants

Michael Allen et al., Respondents, v Thimiana Restaurant Corp. et al., Defendants, and Merchants Mutual Insurance Company et al., Appellants. [609 NYS2d 856] [MAJORITY] —In an action for a judgment declaring that certain claims against the defendant Thimiana Restaurant Corp. constitute “multiple occurrences” within the meaning of an insurance policy issued by Merchants Mutual Insurance Company, Merchants Mutual Insurance Company appeals from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), entered December 6, 1991, as denied its motion to dismiss the complaint in its entirety, and the defendants Brian Cohen and Burt Price separately appeal from so much of the same order as denied their cross motion for summary judgment. The appeal by Brian Cohen and Burt Price has been withdrawn. Ordered that the order is affirmed insofar as appealed from by Merchants Mutual Insurance Company, with costs to the respondents payable by Merchants Mutual Insurance Company. The plaintiffs’ complaint presents a justiciable controversy as to whether the alleged incidents of food poisoning constituted "multiple occurrences” under the subject insurance policy. Accordingly, the Supreme Court properly denied the motion by Merchants Mutual Insurance Company to dismiss the complaint (see, CPLR 3001). Mangano, P. J., Pizzuto, Altman and Krausman, JJ., concur.