PPG Indus., Inc. v. Superintendent of Fin. Servs. of N.Y. (In re Liquidation of Midland Ins. Co.)

• Decision Date: 22 December 2016
• Citation: 145 A.D.3d 601,2016 N.Y. Slip Op. 08610,42 N.Y.S.3d 791 (Mem)
• Parties: In re LIQUIDATION OF MIDLAND INSURANCE COMPANY PPG Industries, Inc., Claimant–Appellant, v. The Superintendent of Financial Services of the State of New York as Liquidator of Midland Insurance Company, Liquidator–Respondent.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 601

42 N.Y.S.3d 791 (Mem)

2016 N.Y. Slip Op. 08610

In re LIQUIDATION OF MIDLAND INSURANCE COMPANYPPG Industries, Inc., Claimant–Appellant,

v.The Superintendent of Financial Services of the State of New York as Liquidator of Midland Insurance Company, Liquidator–Respondent.

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

Dec. 22, 2016.

K & L Gates LLP, New York (Priya Chadha of counsel), for appellant.

Simpson Thacher & Bartlett LLP, New York (Andrew T. Frankel of counsel), for respondent.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered on or about June 5, 2015, which confirmed a Special Referee's report disallowing claimant PPG Industries Inc.'s insurance claim filed against its insolvent insurer, Midland Insurance Company, unanimously affirmed, without costs.

The claim was properly disallowed, since it was contingent, and not absolute, on the final date for filing proofs of claim (see Insurance Law § 7433 [c] ). The Trust Funding Agreement fixing PPG's funding obligation was unsigned and, thus, unenforceable by its terms. Moreover, numerous contractual conditions precedent were not met, including those that would trigger Midland Insurance Company's liability. Also, the Modified Third Amended Plan of Reorganization had not been confirmed by the bankruptcy court and/or district court; the Trust Funding Agreement had not been approved by the bankruptcy court and/or district court; the appellate remedies as to the confirmation of the Modified Third Amended Plan of Reorganization were not exhausted or expired; and the effective date of the Reorganization plan, as defined in that instrument, had not occurred.

We have considered claimant's remaining arguments and find them unavailing.

FRIEDMAN, J.P., MOSKOWITZ, WEBBER, KAHN, GESMER, JJ., concur.