Kramer v. Lockwood Pension Services, Inc. et al, No. 1:2008cv02429 - Document 200 (S.D.N.Y. 2009)

Court Description: OPINION:#97992 ALICE KRAMER, as Personal Representative of the Estate of Arthur Kramer, sued for Declaratory Judgment against LOCKWOOD PENSION SERVICES, INC., TALL TREE ADVISORS, INC., LIFE PRODUCT CLEARING, LLC, TRANSAMERICA OCCIDENTAL LIFE INSURANC E CO., LINCOLN LIFE & ANNUITY CO. OF NEW YORK and JONATHAN S. BERCK. (Dkt. No. 31.) For the reasons stated herein: Defendant Lincoln Life & Annuity Co. Of New York's Motion to Dismiss Plaintiff's Amended Complaint for lack of standing is D ENIED. Tall Tree Advisors, Inc. and Lockwood Pension Services, Inc.'s Motion to Dismiss Plaintiff's Amended Complaint is GRANTED. Therefore, Tall Tree and Lockwood Pension Services are to be terminated as Defendants in the Amended Complaint . All other Defendants remain as parties to the Declaratory Judgment action. PHOENIX LIFE INSURANCE CO. counterclaimed against ALICE KRAMER, as Personal Representative of the Estate of Arthur Kramer, for Fraud, Aiding and/or Abetting Breach of Fiduc iary Duty, and Unjust Enrichment. (Dkt. No. 43) For the reasons stated herein: Plaintiff's Motion to Dismiss Defendant Phoenix's counterclaims of Fraud, Aiding and Abetting a Breach of Fiduciary Duty, and Unjust Enrichment are GRANTED. Con sequently, Phoenix has no further claims pending against Plaintiff, and Plaintiff should be terminated as a Counterclaim Defendant in the complaint filed by Phoenix. PHOENIX LIFE INSURANCE CO. cross-claimed against LOCKWOOD PENSION SERVICES, INC. an d TALL TREE ADVISORS, INC., for Aiding and/or Abetting Fraud, Aiding and/or Abetting Breach of Fiduciary Duty, and civil RICO. (Dkt. No. 43.) For the reasons stated herein: Lockwood Pension Services Inc. and Tall Tree Advisors Motions to Dismiss Phoe nix's Claims of Aiding and/or Abetting Fraud, Aiding and/or Abetting Breach of Fiduciary Duty, Civil RICO are GRANTED. Consequently, Phoenix has no further claims pending against Lockwood Pension Services or Tall Tree Advisors and they should be terminated as Cross-claim Defendants in the complaint filed by Phoenix. PHOENIX LIFE INSURANCE third-party claimed against STEVEN LOCKWOOD, for Fraud, Breach of Fiduciary Duty, Breach of Contract, Negligence, Contractual Indemnification, Unjust Enri chment, and Civil RICO. (Dkt. No. 43) For the reasons stated herein: Steven Lockwood's Motions to Dismiss Phoenix's Cross- Claims for Breach of Contract and Contractual Indemnification are DENIED. Steven Lockwood's Motions to Dismiss P hoenix's Claims of Fraud, Breach of Fiduciary Duty, Negligence, Unjust Enrichment, and Civil RICO are GRANTED. LIFE PRODUCT CLEARING, LLC counterclaimed against ALICE KRAMER, as Personal Representative of the Estate of Arthur Kramer for Declarat ory Judgment, Tortious Interference with Contractual Relations, and in the hypothetical for Misrepresentation/Breach of Warranty. (Dkt. No. 59.) For the reasons stated herein: Plaintiff's Motion to Dismiss Life Product's Counterclaims again st her for Tortious Interference with Contractual Relations is GRANTED. Therefore, Life Product's counterclaims for Declaratory Judgment and in the hypothetical for Misrepresentation/Breach of Warranty remain. LIFE PRODUCT CLEARING, LLC cross-cl aimed against LINCOLN LIFE & ANNUITY CO. for Breach of Contract, three Declaratory Judgment claims, and N.Y. Gen. Bus. Law § 349. (Dkt. No. 59.) Lincoln Life and Annuity's Motion to Dismiss the Crossclaim of Life Product Clearing based on a bstention doctrines and forum non conveniens is DENIED. Lincoln Life and Annuity's Motion to Dismiss the N.Y. Gen. Bus. Law § 349 Cross-claim of Life Product. Clearing is GRANTED. Therefore, Life Product Clearing's cross-claims agai nst Lincoln Life for Breach of Contract and Declaratory Judgment remain. LIFE PRODUCT CLEARING, LLC third-party claimed against LIZA KRAMER and ANDREW B. KRAMER, for Tortious Interference with Contractual Relations and against LIZA KRAMER for Breach of Express Warranty and Breach of Contract. (Dkt. No. 60.) For the reasons stated herein: Third Party Defendants Liza and Andrew Kramer's Motions to Dismiss Life Product's Third Party claims against them for Tortious Interference with Contr actual Relations are GRANTED without leave to replead to the extent the claims were predicated on their involvement with the Estate's determination to file this lawsuit. Further, Liza Kramer's Motion to Dismiss Life Product's Tortious Interference claims are GRANTED on the additional ground that she failed to provide timely the death certificate of Arthur Kramer. Therefore, the Breach of Express Warranty and Breach of Contract claims against Liza Kramer remain. JONATHAN S. BERCK, counterclaimed against Plaintiff ALICE KRAMER, as Personal Representative of the Estate of Arthur Kramer, for Declaratory Judgment, Tortious Interference with Contractual Relations, and in the hypothetical, for Misrepresentation/Breach of Warranty. For the reasons reasons stated herein: (Dkt. No. 90). Plaintiff's Motion to Dismiss Defendant Jonathan Berek's Counterclaims against her for Tortious Interference with Contractual Relations is GRANTED. Therefore, Berek's counterclaim s for Declaratory Judgment and in the hypothetical for Misrepresentation/Breach of Warranty remain. JONATHAN S. BERCK, cross-claimed against LINCOLN LIFE & ANNUITY CO., for Breach of Contract, three Declaratory Judgment claims, and N.Y. Gen. Bus. Law § 349. (Dkt. No. 90) For reasons stated herein: Lincoln Life and Annuity's Motion to Dismiss the Crossclaims of Life Product Clearing based on abstention doctrines and forum non conveniens are DENIED. Lincoln Life and Annuity's Motion to Dismiss Berek's N.Y. Gen. Bus. Law § 349 Cross-claim is GRANTED. Therefore, Berek's cross-claims against Lincoln Life for Breach of Contract and Declaratory Judgment remain. JONATHAN S. BERCK, third-party claimed against LIZA KRAM ER and ANDREW B. KRAMER, for Tortious Interference with Contractual Relations. (Dkt. No. 91.) For the reasons stated herein: Third Party Defendants Liza and Andrew Kramer's Motions to Dismiss Jonathan Berek's Third Party claims against them for Tortious Interference with Contractual Relations are GRANTED. Therefore, Berek has no remaining claims against Liza and Andrew Kramer and his Third-Party Complaint is DISMISSED. LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK, counterclaimed against Plaintiff ALICE KRAMER, as Personal Representative of the Estate of Arthur Kramer, for Common Law Conspiracy (Count 9) and Declaratory Judgment (Count 13). (Dkt. No. 140) For the reasons stated herein: Counts 9 and 13 are DISMISSED because the two ye ar contestability period has elapsed. Plaintiff is to be terminated as a Counterclaim Defendant in the suit filed by Lincoln Life and Annuity. LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK, cross-claimed against STEVEN LOCKWOOD, LOCKWOOD PENSION SERVICE S, JONATHAN S. BERCK, individually and as Trustee for the Leon Lobel Insurance Trust dated November 15, 2005, and LIFE PRODUCT CLEARING LLC., for Count 1, Breach of Contract against Steven Lockwood, Count 3, Fraud against steven Lockwood and Lockwoo d Pension Services, Count 4, Fraud against Lockwood, and Lockwood Pension Services associated with the Leon Lobel policy, Count 5, Fraudulent Concealment Against Steven Lockwood and Lockwood Pension Services, Count 6, Fraudulent Concealment Against L ockwood, and Lockwood Pension Services associated with the Leon Lobel policy, Count 7, Aiding and Abetting Fraud against Jonathan Berek, and Life Product, Count 8, Aiding and Abetting Fraud against Berek, and Life Product associated with the Leon Lob el policies, Count 9, Common Law Conspiracy against Steven Lockwood, Lockwood Pension Services, Jonathan Berk and Life Product Clearing, Count 10, Common Law Conspiracy Against Steven Lockwood, Lockwood Pension Services, Jonathan Berk, and Life Produ ct associated with the Leon Lobel policies, Count 11, Negligent Misrepresentation against Steven Lockwood, Count 13, Declaratory Judgment against Steven Lockwood, Lockwood Pension Services, Jonathan Berk and Life Product, and Count 14, Equitable Acco unting against and Steven Lockwood. (Dkt. No. 140.) For the reasons stated herein: Counts 4, 6, 8, and 10, are DISMISSED because this Court declines to exercise jurisdiction over claims relating to the Leon Lobel insurance policies, as is Count 14 to the extent it names Joel Miller. Counts 3, 5, 7, 9, 11, and 13 are dismissed as to all Cross-claim Defendants because the two year contestability period has run. Steven Lockwood's Motion to Dismiss, Count 14 seeking an Equitable Accounting is G RANTED. Steven Lockwood's Motion to Dismiss Lincoln Life and Annuity's Count 1, for Breach of Contract is DENIED. Therefore all cross-claims asserted by Lincoln Life and Annuity are dismissed except Count 1, and LOCKWOOD PENSION SERVICES a nd JONATHAN S. BERCK are to be terminated as Cross-claim Defendants in the suit filed by Lincoln Life and Annuity. LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK, third-party claimed against JOEL B. MILLER and TD BANK N.A., for Count 2, Breach of Contrac t Against Joel Miller, Count 4, Crossclaims Against Miller for fraud associated with the Leon Lobel policy, Count 6, Fraudulent Concealment Against Miller, Count 7, Aiding and Abetting Fraud Against TD Bank, Count 8, Aiding and Abetting Fraud Against TD Bank, Count 9, Common Law Conspiracy against TD Bank, Count 10, Common Law Conspiracy Against Joel Miller and TD Bank, Count 12, Negligent Misrepresentation Against Joel Miller, Count 13, Declaratory Judgment Against Joel Miller and TD Bank, and Count 14, Equitable Accounting Against Miller. 140.) (Dkt. No. 140) For the reasons stated herein: The Motions of Joel Miller and TD Bank to DISMISS Counts 2, 4, 6, 8, 10, 12 are GRANTED because this Court declines to exercise jurisdiction over clai ms relating to the Leon Lobel insurance policies. Joel Miller's Motion to Dismiss Count 14 is GRANTED. Counts 7, 9, and 13 against TD BANK are dismissed because the two year contestability period has run. Therefore, the third-party suit against Joel Miller and TD Bank is DISMISSED in its entirety and they are to be terminated as Defendants. Finally, for the reasons stated herein: Lifemark's Motion to Intervene is GRANTED. The Clerk of Court is directed to terminate all pending motions in this case. Because the Court finds that there is indeed substantial ground for difference of opinion on the application of New York Insurance Law to SOLI arrangements, and that an immediate appeal from this Order would materially advance the ulti mate termination of this litigation, the Court further certifies this order for an interlocutory appeal to the Second Circuit. 28 U.S.C. § 1292. And, in order to promote the most efficient use of resources, the Court also stays this action pendi ng the ten-day period for taking an appeal, and if taken, while the Circuit determines whether certification is appropriate, and if it is further certified to the New York Court of Appeals, pending that Court's determination. For ease of identif ication this case shall be re-captioned "In re Arthur Kramer Insurance Trust Litigation." Parties are directed to review the Court's Individual Practice Rules and note that under no circumstances are any letters to the Court to exceed two pages. Any further motion papers or letters by any party shall not exceed the page limits set by the Court in the Individual Practice Rules; requests for enlargement will not be entertained or granted. The Court will not read beyond the specified length. Furthermore, for ease of reference, opposing parties submissions shall be referred to by the number on the docket rather than the name of the submission. Parties shall refer to one another by full names and not acronyms. Notwithstanding th e stay discussed above, LIFEMARK N.A. SHALL DOCKET its proposed Intervenor-Third Party Complaint immediately. (Dkt. No. 110-2.) However, Count 2 is DISMISSED consistent with this Opinion. After the stay is lifted, Parties who have not yet Answered will be Ordered to do so, and Defendants to the Intervenor/Thirdparty Complaint shall be afforded the opportunity Move or Answer, consistent with this OPINION. (Signed by Judge Deborah A. Batts on 9/1/2009) (jpo) Modified on 9/1/2009 (jpo). Modified on 9/8/2009 (eef).