Arthur Goldstein, Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY (2003)

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered July 3, 2002, which, upon the prior grant of plaintiff Soho Plaza Corp., Inc.'s motion for summary judgment declaring that defendant insurer is required to indemnify Soho Plaza for amounts paid by it in settlement of the underlying action, awarded plaintiff the total sum of $3,429,431, unanimously affirmed, with costs.

 The motion court's finding of insurance coverage does not violate public policy as embodied in statute and case law prohibiting indemnification under directors and officers liability insurance policies where directors and officers have been cast in liability by reason of their deliberate dishonesty or bad faith.   Defendant's claim that the judgment in the underlying action “necessarily” includes a finding that Soho Plaza's directors and officers acted with deliberate dishonesty and bad faith is conclusively refuted by the record of the proceedings in that action.

 Defendant's remaining arguments, including that the finding of coverage results in unjust enrichment to the insured;  that the alleged culpable acts do not fall within the effective dates of the subject policies;  and that breach of contract claims are excluded from coverage, are not properly raised for the first time on appeal (see Martin v. Manhattan & Bronx Surface Tr. Operating Auth., 198 A.D.2d 160, 604 N.Y.S.2d 65).   Moreover, were we to reach these claims, we would find them unavailing.