Dupree v Scottsdale Ins. Co.

Dupree v Scottsdale Ins. Co. 2012 NY Slip Op 04839 Decided on June 14, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2012
Andrias, J.P., Friedman, Sweeny, Manzanet-Daniels, Román, JJ.
7952N 653412/11

[*1]Courtney Dupree, Plaintiff-Respondent,

v

Scottsdale Insurance Company, Defendant-Appellant.




Boundas, Skarzynski, Walsh & Black, LLC, New York (Alexis
J. Rogoski of counsel), for appellant.
Schlam Stone & Dolan LLP, New York (Bradley J. Nash of
counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 4, 2012, which, to the extent appealed from, sua sponte, granted plaintiff insured a temporary restraining order directing defendant insurer to pay, from the date of the order until the determination of plaintiff's motion for a preliminary injunction, attorneys' fees and costs related to plaintiff's defense of a criminal action pending against him in federal court, unanimously affirmed, with costs.

Supreme Court providently exercised its discretion in granting the temporary restraining order (see CPLR 6301; Wyndham Co. v Wyndham Hotel Co., 236 AD2d 220 [1997]). The failure of an insurance company to advance payments covering defense costs and fees under a directors and officers liability policy, like the one at issue here, constitutes a direct, immediate and irreparable injury, as it would deprive the insured of the benefit bargained for through payment of the policy premium (see Wedtech Corp. v Federal Ins. Co., 740 F Supp 214, 221 [SD NY 1990]; Nu-Way Envtl., Inc. v Planet Ins. Co., 1997 WL 462010, *3, 1997 US Dist LEXIS 11884, *9 [SD NY, Aug. 12, 1997, No. 95-Civ-573(HB)]). Defendant's argument that it has been relieved of the requirement to provide coverage and/or advance legal costs and fees under the policy because plaintiff's conduct violated the policy's exclusions is unavailing at this juncture. Absent a final adjudication that plaintiff's alleged wrongdoing does indeed fall under the policy's exclusions, the policy remains in effect and defendant is required to pay attorneys' [*2]fees and defense costs, subject to recoupment in the event it is ultimately determined that the exclusions apply (see Federal Ins. Co. v Kozlowski, 18 AD3d 33, 42 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 14, 2012

CLERK