Seldon v Allstate Ins. Co.

Seldon v Allstate Ins. Co. 2013 NY Slip Op 03954 Decided on June 4, 2013 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 4, 2013
Andrias, J.P., Sweeny, Freedman, Feinman, Gische, JJ.
9542 116217/08

[*1]Philip Seldon, Plaintiff-Respondent,

v

Allstate Insurance Company et al., Defendants-Appellants.




Shapiro, Beilly & Aronowitz, LLP, New York (Roy J. Karlin
of counsel), for appellants.
Philip Seldon, respondent pro se.

Order, Supreme Court, New York County (Debra A. James, J.), entered April l9, 2012, which denied defendants Allstate Insurance Company and Allstate Insurance Co., Inc.'s (Allstate) motion for summary judgment dismissing the third cause of action, unanimously reversed, on the law, without costs, and the motion granted.

The third cause of action alleges that defendant insurer acted in bad faith by failing to settle libel and slander claims within policy limits, resulting in a judgment against plaintiff that included punitive damages. Defendant is entitled to summary judgment on that claim based on public policy precluding an insured from recovering the punitive damages portion of any judgment which may have resulted from the insurer's bad faith failure to settle (see Soto v State Farm Ins., 83 NY2d 718 [1994]). Although this public policy argument was advanced for the first time in defendant's appellate brief, defendant alleged no new facts, but rather raised pure legal arguments which may be considered for the first time on appeal (see Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 AD3d 405, 408 [1st Dept 2010]). The Decision and Order of this Court entered herein on March 14, 2013 is hereby recalled and vacated (see M-2259 decided simultaneously herewith).

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

ENTERED: JUNE 4, 2013

CLERK