Goldman v. Metropolitan Life Insurance Company, 2273.

• Decision Date: 28 December 2004
• Docket Number: 2273.
• Citation: 13 A.D.3d 289,788 N.Y.S.2d 25,2004 NY Slip Op 09694
• Parties: NEIL A. GOLDMAN, Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

13 A.D.3d 289

788 N.Y.S.2d 25

2004 NY Slip Op 09694

NEIL A. GOLDMAN, Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant.

2273.

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

December 28, 2004.

Order, Supreme Court, New York County (Ira Gammerman, J.), entered May 27, 2003, which denied the motion of defendant Metropolitan Life Insurance Company (MetLife) to dismiss the complaint in this putative class action pursuant to CPLR 3211 (a) (7), reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant MetLife dismissing the complaint.

On or about January 30, 2002, plaintiff Neil Goldman applied for a term life insurance policy from MetLife and expressly selected a so-called "cash on delivery" (C.O.D.) method of payment. Under this payment option, no coverage would take effect until the policy was physically delivered to the insured and until the insured paid the first premium in full. It was further provided that all subsequent annual payments would then become due on the anniversary date of the policy.

It is undisputed that Goldman paid his full first premium on May 6, 2002 and that the subject policy was actually physically delivered to him 24 days later on May 30, 2002, less than a full calendar year after the issue date of the policy.

Goldman subsequently commenced this putative class action on behalf of himself and others similarly situated, asserting four causes of action: (1) violations under General Business Law § 349; (2) breach of contract; (3) breach of implied covenant of good faith and fair dealing; and (4) unjust enrichment. In essence, the complaint alleges that MetLife deceptively denied its C.O.D. policyholders full coverage by charging and collecting "annual" life insurance premiums for less than 365 days of coverage for the first policy year. In particular, Goldman contends that since he did not receive his policy until May 30, he paid a premium for 24 days of coverage that he did not actually receive. MetLife thereafter moved to dismiss the complaint for failure to state a cause of action, contending that Goldman's allegations are contradicted by documentary evidence, i.e., the clear and unambiguous terms of the subject policy. The IAS court denied the motion, finding that "the fact that the policyholder is not receiving coverage for a full year, although paying a premium for that full year, is enough to withstand the motion to dismiss." We now reverse.

It is well settled that on a motion to dismiss, a court must liberally construe the complaint in the light most favorable to plaintiff and all factual allegations therein must be accepted as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; P.T. Bank Cent. Asia v ABN AMRO Bank, 301 AD2d 373, 375-376 [2003]). Where documentary evidence, however, resolves all factual issues as a matter of law, the dismissal of the complaint is warranted (see Topel v Reliastar Life Ins. Co., 6 AD3d 608 [2004]; Dougherty v William Penn Life Ins. Co. of N.Y., 3 AD3d 469 [2004], lv denied 2 NY3d 704 [2004]; Randazzo v Gerber Life Ins. Co., 3 AD3d 485 [2004], lv denied 2 NY3d 704 [2004]).

Applying these standards to the instant matter, we find, as this Court also concludes in Katz v American Mayflower Life Ins. Co. of N.Y. (___ AD3d ___, 2004 NY Slip Op 09719 [2004]), that the terms of the subject insurance policy, including the initial application, which was incorporated therein, were not ambiguous and clearly set forth when coverage was to begin and when the first and subsequent annual premiums were to be paid by the C.O.D. policyholders (see Topel v Reliastar Life Ins. Co., supra; Dougherty v William Penn Life Ins. Co. of N.Y., supra; Randazzo v Gerber Life Ins. Co., supra). Accordingly, the IAS court erred in failing to dismiss the complaint.

We have considered plaintiff's remaining contentions and find them unavailing.

Concur — Nardelli, J.P., Sullivan and Lerner, JJ.

Tom, J., dissents in a memorandum as follows:

Based upon the reasoning I set forth in Katz v American Mayflower Life Ins. Co. (___ AD3d ___, ___, 2004 NY Slip Op 09719 [2004]), I respectfully dissent and would affirm the order denying summary judgment dismissing the complaint.

At issue on this appeal is whether defendant's life insurance contract is unambiguous so as to warrant dismissal of this putative class action seeking to recover unearned premiums for such period of time during the initial policy year that no coverage has been provided. Defendant contends that, when read as a whole, its policy reflects that the first "annual" premium purchases less than a full year of coverage. Plaint...