(dissenting). The majority opinion argues that the injury was accidental and within the coverage of the insurance policies, since, as Judge Cardozo said in Messersmith v. American Fid. Co. (232 N. Y. 161, 165), “ injuries are accidental or the opposite for the purpose of indemnity according to the quality of the results rather than the quality of the causes.”
But the word 1‘ accident ’ ’ cannot be so precisely defined as to render the definitions universally applicable. It is to be construed in its relevant context (Matter óf Croshier v. Levitt, 5 N Y 2d 259) and its meaning “ is to be determined, not by any legal definition, but by the common-sense viewpoint of the average man ” (Matter of Masse v. Robinson Co., 301 N. Y 34, 37). The ordinary concept is that of a sudden happening and not of the sequel of a continuing process (Jackson v. Employers’ Liab. Assur. Corp., 139 Misc. 686, affd. 234 App. Div. 893, affd. 259 N. Y. 559; Cosmopolitan Mut. Ins. Co. v. Packer’s Supermarket, 72 Misc 2d 980).
In the instant case Colpan was warned in 1965, not long after the inception of its building project, of the damage caused by the operation of heavy machinery in close proximity to the plaintiff’s garage wall. It ignored the warnings and continued the damage-producing conduct. The ultimate damage in these circumstances cannot be viewed as unexpected or unforeseen. It was, as the complaint in the prior action originally alleged, the result of -trespass, “unlawfully, wilfully, and wantonly” committed, “ with actual knowledge of the nature of the damage likely to be inflicted.”
In view of my conclusion that the damage to the plaintiff’s garage was not the result of an accident and that therefore the *382defendant was not liable under the terms of any of the policies issued to Cólpan, there is no need to consider the various other defenses advanced by the defendant and discussed at length in the majority opinion. For the reasons stated, I dissent and vote to affirm the judgment.
Martuscello, Acting P. J., and Brennan, J. concur with Shapiro, J.; Munder, J., dissents and votes to affirm, in ah opinion, in which Christ, J., concurs.
Judgment of the Supreme Court, Westchester County, dated April 20,1972, reversed, on the law and the facts, with costs, and judgment granted in favor of plaintiff against defendant as demanded in the complaint, with costs.