EASTERN MUTUAL INSURANCE COMPANY v. KLEINKE


308 A.D.2d 676 (2003)

764 N.Y.S.2d 660

EASTERN MUTUAL INSURANCE COMPANY, Appellant, v. PETER M. KLEINKE et al., Defendants, and CAMBRIDGE VALLEY AGRICULTURAL SOCIETY, INC., Doing Business as WASHINGTON COUNTY JUNIOR FAIR, Also Known as WASHINGTON COUNTY FAIR, INC., Respondent.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided September 25, 2003.


Carpinello, J.

In connection with an E-coli outbreak at the Washington County Fair, a negligence action was commenced against plaintiff's insureds. Based on an exclusion in its liability policy, plaintiff commenced a declaratory judgment action to determine if it was to defend or indemnify its insureds, including defendant Cambridge Valley Agricultural Society, Inc. (hereinafter defendant). Ultimately, by decision and order dated January

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