Opinion
2012-11-13
Courtney DUPREE, Plaintiff–Appellant, Rodney Watts, Plaintiff–Respondent–Appellant, v. SCOTTSDALE INSURANCE COMPANY, Defendant–Respondent.
Schlam Stone & Dolan LLP, New York (Bradley J. Nash of counsel), for Courtney Dupree, appellant. DePetris & Bachrach, LLP, New York (Marion Bachrach of cousel), for Rodney Watts, respondent-appellant.
Schlam Stone & Dolan LLP, New York (Bradley J. Nash of counsel), for Courtney Dupree, appellant. DePetris & Bachrach, LLP, New York (Marion Bachrach of cousel), for Rodney Watts, respondent-appellant.
Boundas, Skarzynski, Walsh & Black, LLC, New York (Alexis J. Rogoski and Aron M. Zimmerman of counsel), for respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about June 29, 2012, which, to the extent appealed from, granted plaintiffs' motions for a preliminary injunction directing defendant insurance company to pay plaintiffs' defense costs but declined to direct defendant to pay costs accrued by plaintiff Courtney Dupree prior to January 4, 2012, and costs accrued by plaintiff Rodney Watts prior to June 7, 2012, unanimously affirmed, without costs.
In this action brought to compel defendant insurance carrier to pay defense costs, incurred in civil and criminal litigation arising out of plaintiffs' actions as corporate officers, under a director's and officer's policy issued by defendant, the motion court properly considered irreparable harm and the equities ( Gliklad v. Cherney, 97 A.D.3d 401, 402, 948 N.Y.S.2d 48 [1st Dept. 2012] ) and did not improvidently exercise its discretion ( see Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272 [1988] ), in limiting the defense costs which defendant is required to pay.
The additional defense costs that plaintiffs seek to recover constitute monetary harm which can be compensated by damages and does not constitute irreparable injury for which injunctive relief will be granted (Matter of J.O.M. Corp. v. Department of Health, 173 A.D.2d 153, 569 N.Y.S.2d 66 [1st Dept. 1991] ). The motion court properly determined that directing the payment of past defense costs may deplete the $5,000,000 limit on the policy thereby depriving plaintiff Watts of coverage under the policy and disturbing, rather than maintaining, the status quo ( see Morris v. Port Auth. of N.Y. & N.J., 290 A.D.2d 22, 26, 736 N.Y.S.2d 324 [1st Dept. 2002] ).
We have considered plaintiffs' additional arguments and find them unavailing.