| Seldon v Allstate Ins. Co. |
| 2013 NY Slip Op 03954 [107 AD3d 424] |
| June 4, 2013 |
| Appellate Division, First Department |
| Philip Seldon, Respondent, v Allstate InsuranceCompany et al., Appellants. |
—[*1] Philip Seldon, respondent pro se.
Order, Supreme Court, New York County (Debra A. James, J.), entered April 19,2012, which denied defendants Allstate Insurance Company and Allstate Insurance Co.,Inc.'s (Allstate) motion for summary judgment dismissing the third cause of action,unanimously reversed, on the law, without costs, and the motion granted.
The third cause of action alleges that defendant insurer acted in bad faith by failingto settle libel and slander claims within policy limits, resulting in a judgment againstplaintiff that included punitive damages. Defendant is entitled to summary judgment onthat claim based on public policy precluding an insured from recovering the punitivedamages portion of any judgment which may have resulted from the insurer's bad faithfailure to settle (see Soto v State Farm Ins. Co., 83 NY2d 718 [1994]). Althoughthis public policy argument was advanced for the first time in defendant's appellate brief,defendant alleged no new facts, but rather raised pure legal arguments which may beconsidered for the first time on appeal (see Vanship Holdings Ltd. v Energy Infrastructure AcquisitionCorp., 65 AD3d 405, 408 [1st Dept 2009]).
The decision and order of this Court entered herein on March 14, 2013 (104 AD3d517) is hereby recalled and vacated (see 2013 NY Slip Op 75712[U] [decidedsimultaneously herewith]). Concur—Andrias, J.P., Sweeny, Freedman, Feinmanand Gische, JJ.