Summary
rejecting insured's argument that there was an issue of fact concerning the nature of the payment under an AOD because the AOD conclusively linked the disgorgement to improperly acquired funds
Summary of this case from UNITEDHEALTH GROUP INC. v. HISCOX DEDICATED CORPORATE MEMOpinion
No. 1617.
December 1, 2009.
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.
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.
Before: Mazzarelli, J.P., Sweeny, Catterson, Freedman and Roman, JJ.
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). 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, lv dismissed in part and denied in part 82 NY2d 704).
We have considered plaintiff's remaining contentions and find them unavailing.
[Prior Case History: 24 Misc 3d 212.]