Millennium Partners, L.P. v Select Ins. Co.

Millennium Partners, L.P. v Select Ins. Co. 2009 NY Slip Op 08886 [68 AD3d 420] December 1, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Millennium Partners, L.P., Appellant,
v
Select Insurance Company, Respondent, et al., Defendant.

—[*1] Lowey Dannenberg Cohen & Hart, P.C., White Plains (Peter D. St. Phillip, Jr. of counsel), for appellant.

Edwards Angell Palmer & Dodge LLP, New York (Ira G. Greenberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Marcy S. Friedman, J.), entered March 13, 2009, dismissing the complaint as against defendant Select Insurance Company, pursuant to an order, same court and Justice, entered March 10, 2009, which granted defendant's motion for summary judgment, unanimously affirmed, with costs. Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

As the motion court found, the findings recited in the Securities and Exchange Commission's cease and desist order to which plaintiff consented and in the assurance of discontinuance it entered into with the Attorney General of the State of New York, which provided, inter alia, for the disgorgement by plaintiff of $148 million, "conclusively link the disgorgement to improperly acquired funds," notwithstanding that plaintiff consented and agreed to these orders "without admitting or denying the findings [t]herein" (see Vigilant Ins. Co. v Credit Suisse First Boston Corp., 10 AD3d 528 [2004]). The fact that no judgments resulted from the negotiated settlements in which these findings were made does not affect the validity of the findings (see Reliance Group Holdings v National Union Fire Ins. Co. of Pittsburgh, Pa., 188 AD2d 47, 55 [1993], lv dismissed in part and denied in part 82 NY2d 704 [1993]). [*2]

We have considered plaintiff's remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Sweeny, Catterson, Freedman and Roman, JJ.[Prior Case History: 24 Misc 3d 212.]