Dupree v. Scottsdale Ins. Co.

• Decision Date: 14 June 2012
• Citation: Dupree v. Scottsdale Ins. Co., 2012 NY Slip Op 4839, 96 A.D.3d 546, 947 N.Y.S.2d 428 (N.Y. App. Div. 2012)
• Parties: Courtney DUPREE, Plaintiff–Respondent, v. SCOTTSDALE INSURANCE COMPANY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 546

947 N.Y.S.2d 428

2012 N.Y. Slip Op. 04839

Courtney DUPREE, Plaintiff–Respondent,

v.SCOTTSDALE INSURANCE COMPANY, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

June 14, 2012.

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.

ANDRIAS, J.P., FRIEDMAN, SWEENY, MANZANET–DANIELS, ROMÁN, JJ.

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 ( seeCPLR 6301; Wyndham Co. v. Wyndham Hotel Co., 236 A.D.2d 220, 653 N.Y.S.2d 852 [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 [S.D.N.Y.1990]; Nu–Way Envtl., Inc. v. Planet Ins. Co., 1997 WL 462010, *3, 1997 U.S. Dist. LEXIS 11884, *9 [S.D.N.Y., Aug. 12, 1997, No. 95–Civ–573(HB) ] ). Defendant's argument that it has been...