Finkelstein v. Lincoln Nat'l Corp.

• Decision Date: 12 June 2013
• Citation: Finkelstein v. Lincoln Nat'l Corp., 107 A.D.3d 759, 967 N.Y.S.2d 733, 2013 N.Y. Slip Op. 4308 (N.Y. App. Div. 2013)
• Parties: Harold FINKELSTEIN, etc., et al., appellants-respondents, v. LINCOLN NATIONAL CORPORATION, et al., defendants, Lincoln Life & Annuity Company of New York, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 759

967 N.Y.S.2d 733

2013 N.Y. Slip Op. 04308

Harold FINKELSTEIN, etc., et al., appellants-respondents,

v. LINCOLN NATIONAL CORPORATION, et al., defendants,Lincoln Life & Annuity Company of New York, et al., respondents-appellants.

Supreme Court, Appellate Division, Second Department, New York.

June 12, 2013.

Markewich and Rosenstock LLP, New York, N.Y. (Lawrence M. Rosenstock and Eve Rachel Markewich of counsel), for appellants-respondents.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Janene M. Marasciullo of counsel), for respondents-appellants.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered October 14, 2011, as denied that branch of their motion which was pursuant to CPLR 3025(b) for leave to amend their complaint to assert a third cause of action so as to allege that the defendant Lincoln Life & Annuity Company of New York violated Insurance Law § 4226, and the defendants Lincoln Life & Annuity Company of New York, Lincoln Financial Advisors Corp., Sagemark Consulting, and Siller & Cohen cross-appeal, as limited by their notice of appeal and brief, from so much of the same order as granted that branch of the plaintiffs' motion which was pursuant to CPLR 3025(b) for leave to amend the complaint to assert a fourth cause of action so as to allege that Randy P. Siller violated Insurance Law § 2123.

ORDERED that the cross appeal is dismissed, as the respondents-appellants are not aggrieved by the portion of the order cross-appealed from ( seeCPLR 5511); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, and that branch of the plaintiffs' motion which was pursuant to CPLR 3025(b) for leave to amend their complaint to assert a third cause of action so as to allege that the defendant Lincoln Life & Annuity Company of New York violated Insurance Law § 4226 is granted; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

A person “is aggrieved when he or she asks for relief but that relief is denied in whole or in part [and] when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or part” ( Mixon v. TBV, Inc., 76 A.D.3d 144, 156, 904 N.Y.S.2d 132). Here, the portion of the order cross-appealed from granted that branch of the plaintiffs' motion which was for leave to amend the complaint so as to add Randy P. Siller as a party defendant and assert a cause of action against him alleging that he violated Insurance Law § 2123. Since that branch of the plaintiffs' motion did not seek relief against the defendants Lincoln Life & Annuity Company of New York (hereinafter LLACNY), Lincoln Financial Advisors Corp. (hereinafter Lincoln Financial), Sagemark Consulting (hereinafter Sagemark), or Siller & Cohen, those defendants are not aggrieved by the portion of the order cross-appealed from. Accordingly, their cross appeal must be dismissed.

The plaintiffs Harold Finkelstein and Marilyn Finkelstein (hereinafter together the Finkelsteins) created the H. Finkelstein Family Trust (hereinafter the Trust), of which their son, the plaintiff Ronald Finkelstein, is the trustee. The Trust and the Finkelsteins consulted with Lincoln Financial through the latter's agents, the defendants Siller & Cohen and Sagemark, to obtain advice about, inter alia, estate planning and the use of life insurance products to pay estate taxes. After consulting with these defendants, the plaintiffs, in January 2007, purchased a “second to die life insurance policy” issued by LLACNY. The plaintiffs paid the first $800,000 premium by January 28, 2007, and made their second $800,000 premium payment less than one year later. Thereafter, the plaintiffs cancelled the subject policy upon discovering that American General Life Insurance Company offered a similar second-to-die life insurance policy with a slightly reduced death benefit, but at a much lower price for the premium.

In March 2009, the plaintiffs commenced this action against, among others, LLACNY, Lincoln Financial, Sagemark, and Siller & Cohen, asserting causes of action sounding in breach of contract (first cause of action), breach of fiduciary duty (second cause of action), fraud (third cause of action), constructive fraud (fourth cause of action), and negligent misrepresentation (fifth cause of action). The plaintiffs alleged that the defendants induced them to purchase the subject life insurance policy by misrepresenting that policy to be the best means of achieving their estate planning goals.

Prior to answering, the defendants moved to dismiss the complaint. In an order dated November 18, 2009, the Supreme Court directed the dismissal of the complaint insofar as asserted against Lincoln National Corporation pursuant to CPLR...