Opinion
September 3, 1992
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
The Supreme Court appropriately determined that the Directors and Officers Liability Endorsement extends coverage whenever any of the insured, including the corporate entity, is legally obligated to pay for a civil claim arising out of a wrongful act. The exclusion urged by plaintiff does not apply since the endorsement is separate and distinct from the general liability portion of the policy (see, Matter of Knickerbocker Ins. Co. [Faison], 22 N.Y.2d 554, 558; Thompson-Starrett Co. v American Mut. Liab. Ins. Co., 276 N.Y. 266; Matter of Eveready Ins. Co. v Asante, 153 A.D.2d 890, 891). However, the court should have declared the rights of the parties under the policy rather than dismiss the complaint (Lanza v Wagner, 11 N.Y.2d 317). Defendant was, moreover, entitled to recover attorneys' fees and costs, having been compelled by its insurer "to defend against its attempts to obtain a declaration of its right to disclaim" (Mighty Midgets v Centennial Ins. Co., 47 N.Y.2d 12, 22).
Concur — Milonas, J.P., Wallach, Kupferman and Asch, JJ.