Companion Life Insurance Company of New York v. All State Abstract Corp.

• Decision Date: 12 December 2006
• Docket Number: 2004-10867.,2004-10861.,2005-00071.,2005-06026.,No. 12117/03.,2004-10864.,12117/03.
• Citation: Companion Life Insurance Company of New York v. All State Abstract Corp., 35 A.D.3d 519, 829 N.Y.S.2d 536, 2006 NY Slip Op 9401 (N.Y. App. Div. 2006)
• Court: New York Supreme Court — Appellate Division
• Parties: COMPANION LIFE INSURANCE COMPANY OF NEW YORK, Appellant-Respondent, v. ALL STATE ABSTRACT CORP., Respondent-Appellant, and ANGELA WALLACE, Respondent.

35 A.D.3d 519

829 N.Y.S.2d 536

2006 NY Slip Op 09401

COMPANION LIFE INSURANCE COMPANY OF NEW YORK, Appellant-Respondent, v. ALL STATE ABSTRACT CORP., Respondent-Appellant, and ANGELA WALLACE, Respondent.

2004-10861.

2004-10864.

2004-10867.

2005-00071.

2005-06026.

No. 12117/03.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided December 12, 2006.

In an action, inter alia, for a judgment declaring, inter alia, that the plaintiff was not obligated to pay the proceeds of a policy of life insurance, the plaintiff appeals from (1) so much of an order of the Supreme Court, Nassau County (Roberto, J.), dated November 22, 2004, as granted those branches of the motion of the defendant All State Abstract Corp. which were for summary judgment dismissing the complaint and for summary judgment on the first counterclaim declaring the insured's death was covered by the subject life insurance policy and obligating the plaintiff to pay the face amount to the defendant All State Abstract Corp., (2) a second order of the same court, also dated November 22, 2004, which denied its motion for a subpoena duces tecum, (3) a third order of the same court, also dated November 22, 2004, which denied its motion for a so-called "qualified HIPAA Protective Order," (4) so much of a fourth order

of the same court, also dated November 22, 2004, as granted two motions of the defendant Angela Wallace to quash the subpoena for her testimony as a nonparty witness and the subpoena duces tecum issued by the plaintiff, and (5) an order of the same court dated May 31, 2005, which denied the separate motions of the plaintiff for leave to renew and reargue the prior motions, and the defendant All State Abstract Corp. cross-appeals from so much of the first order dated November 22, 2004, as, upon granting that branch of its motion which was for summary judgment on its first counterclaim, determined that interest on the proceeds of the life insurance policy should not accrue from the date of the insured's death but instead should accrue from the date of the verification of the complaint, and, upon searching the record, awarded Companion Life Insurance Company of New York summary judgment dismissing its counterclaim for an award of an attorney's fee.

Ordered that the first order dated November 22, 2004 is modified, on the law, by deleting the provision thereof determining that interest on the proceeds of the life insurance policy should accrue from the date of the verification of the complaint, and substituting therefor a provision determining that interest should accrue from the date of the insured's death; as so modified, the order is affirmed insofar as appealed and cross-appealed from; and it is further,

Ordered that the second order dated November 22, 2004 is affirmed; and it is further,

Ordered that the third order dated November 22, 2004 is affirmed; and it is further,

Ordered that the fourth order dated November 22, 2004 is affirmed insofar as appealed from; and it is further,

Ordered that the appeal from so much of the order dated May 31, 2005 as denied those branches of the plaintiff's motions which were for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated May 31, 2005 is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the defendants All State Abstract Corp. and Angela Wallace, payable by the plaintiff.

The plaintiff Companion Life Insurance Company of New York (hereinafter Companion) issued a key man life insurance policy to the beneficiary defendant All State Abstract Corp. (hereinafter All State) insuring the life of its primary shareholder, Joseph T. Wallace (hereinafter the insured). The policy provided that Companion would "pay the death benefit of this policy to the beneficiary upon the receipt at the Home Office of proof that the Insured's death occurred while the policy was in force." While the policy was in force the insured died of "Cocaine & Alcohol Toxicity," and All State sought to recover the proceeds of the policy. Thereafter, Companion brought this action, inter alia, seeking a judgment declaring that it was not obligated to pay the proceeds of the policy. All State counterclaimed against Companion seeking, inter alia, a judgment declaring that Companion was obligated under the terms of the policy for the full face amount of the policy with interest from the date of the insured's death and for an award of an attorney's fee.

The Supreme Court properly granted summary judgment in favor of All State on its first counterclaim declaring the death of the insured was covered by the policy and that Companion was obligated to pay the face amount of the policy. All State established its prima facie entitlement to summary judgment under the policy by submitting evidence that...