Weiss v John Hancock Life Ins. Co. of N.Y.

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Weiss v John Hancock Life Ins. Co. of N.Y. 2019 NY Slip Op 30609(U) February 11, 2019 Supreme Court, Rockland County Docket Number: 035397/2014 Judge: Thomas E. Walsh II Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 SUPREME COURT OF THE STATE OF EW YORK COUNT Y OF ROCKLAND ------------------------------------------------------------------x SAM UEL W EISS as T RUSTEE of the AG I W EISS I SURANCE TRUST u/t/d September 1, 2005. Plaintiff, DECISION and ORDER POST TRIAL - against - Jndex o. 035397/20 14 JOHN I IANCOCK LIFE INSURANCE COMPANY OF NEW YORK Defendant. ------------------------------------------------------------------x Hon. Thomas E. Walsh II , J.S.C. The followi ng constitutes the Decision and Order of this Court after a Trial Conducted in the instant matter. T his action was commenced by the filin g of a Summons and Complaint on N ovember 25, 2014 seeking to reinstate a universal li fe insurance policy which insured the life of Mrs. Agi Weiss for $8 million dollars. An Amended Complaint was fil ed on February 16, 2016 also seeking to reinstate the afo rementioned life insurance policy. Defendant joined issue with the filing of an Anser and Affirmative Defenses tO the Amended Complaint on March I 0, 20 16. On May 6, 2016 the parti es filed motions for summary judgment, which the undersigned denied on October 3, 2016 indicating that there questions of fact. As a resul t a bench trial was held on February 2 1 and22 , 2017. Plainti ff's post trial memorandum was received on May 3, 2017 and Defendant' s post trial memorandum was also received on May 3, 20 17. During the trial , the Court provided each 1 of 41 [*FILED: 2] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 party with a full and fair opportunity to: present witnesses; prosecute claims; present defenses; cross-examine witnesses; admit and/or object to the admission of documentary evidence; proffer comments on contested rulings; make arguments which they believed were persuasive; and fully brief their respective positions in post trial submissions. Additionally, the Court has been open and available to communications, requests for conferences, and motions from counsel. In arriving at this Decision and Order the Court has reviewed, evaluated, and considered the entirety of the admissible evidence, including testimony from the parties and each party's post-trial memorandum. Additionally, the Court has also relied on its personal observation of each witness in determining issues of credibility. It should be noted that the fa ilure of the Court to specifically mention any particular piece of evidence in this Decision and Order does not mean that item has not been considered by the Court. As the trier of facts it is the Court's obligation to review all admitted evidence, but that duty does not mean that all admitted evidence is necessarily accepted at face value. In reaching its conclusions the Court has carefully observed and listened to the parties during each day of the trial and has evaluated all evidence in light of its relevance, materiality, credi bility, importance, weight, and, where applicable, permissible inferences have been considered. Moreover, the evidence has been viewed in light of the appropriate legal authority and their interpretive case decisions. The Court recognizes the importance of the instant Decision and Order to each of the parties. No Decision rendered here is made lightly or unadvisedly, as all Decisions result instead from a reasoned view of the credible evidence, applicable law, and considerations of equity. Additionally, all claims have been subjected to the standard of proof by the preponderance of the evidence. Finally, the Court notes that each party was represented by able counsel during the trial. 2 2 of 41 [*FILED: 3] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 GENERALLY: Joh n Hancock (hereinafter Hancock) issued a unj versal life po licy (policy number 59969170) 1 on March 28, 2007 on the life of Agi Weiss for $8 million dollars fo r the benefit of the Agi Weiss Insurance Trust. Plainti ff Samuel Weiss (here inafter We iss) was the current trustee of the Agi Weiss Insurance Trust (hereinafter the Trust) and also the son of Agi Weiss. T he policy is a uni versal life policy which has a .. flex ible" premi um feat ure and also provides for a specified annual " Planned Prem ium" amount which ranged from $500,000 in year one to above $538,000 in year twenty-one and beyond. The owner of the policy continues to make payments fo r as long as they elect to have the coverage. llowever, if a planned premium is not made the Policy does not automatically terminate. Rather, the Poli cy woul d remain in effect as long as there was s ufficient cash va lue to cover Hancock 's month ly charges fo r the cost of the insurance. Tn the c ircumstance of an owner failin g to make sufficient payments to cover the monthly charges, a 61 day grace period begins and the owner is sent a written (via the mai l) notifi cation of default with instructions how to cure the default and prevent lapse. According to Defendant on each processing date the monthly deductions are subtracted Crom the policy value covering the costs of keeping the insurance pol icy in effect. The subject Policy had a processing date of the l 6111 day of each month . Defend ant submits that once the deductions are taken, the insurance policy is '·tested,. on the processing date us ing the poli cy Plaintiff s Exhibit I in evidence on consent to the extent that the copy of the policy was offered to prove the terms and conditio ns of the po li cy that 1lancock had issued on the specific policy number. 1 3 3 of 41 [*FILED: 4] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 value to determ ine the net cas h suITender value . The Defendant contends that when the '"test" occurs, ir the net cash s urrender value is less than or equal to zero then the policy is cons idered in default and the written notification is automatically generated and sent to the policy owner. The facts from this point fo rward are in dis pute between the parties and are the subject of the instant action. Und isputed by the parties is that as of January 6, 20 14 the subject Policy had lapsed for fail ure to pay the premium. TESTIMONY OF THE WITNESSES AT TRIAL a. Testimony of Samuel Weiss According to the testimony at trial at the time of the trial, Weiss had been the trustee of the subject Agi Weiss Insurance Trust for six or seven years. Weiss also testified that the Trust owned the aforementioned insurance policy for whic h his "office" funded and paid the premiums. Weiss testified that he was unaware if there was prior trustee o r if he knew the original owner of the policy was "Mark Kraft." On cross examinati on Weiss testified that the pol icy is almost ten years old and that he believed he purchased it directly or through an agent called Mr. Moskoff. Further, Weiss test ified that he had seen the original policy, but on cross examination he stated that he did not know if he had ever examined a complete copy of the o riginal or the subject insurance policy. Additionall y, on cross examinati on Wei ss stated that he had never read the policy and bel ieved that the policy requirements regarding the premiums were that they ''have to get paid." As to the terms of default, on cross examination Weiss stated " [t[he policy has over twelve thousand words and maybe one hundred pages . J didn't read it. I don't read it. When I buy a po l icy, I know the face amount of the po licy, how much the premium will 4 4 of 41 [*FILED: 5] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 cost a year. We go on from there." During cross exam ination Weiss was asked numerous questions about how the policy was original ly obtained, by whom and how the policy was transferred to the Trust, but he continuously stated he "did not remember" or "d idn't know." On direct examination, Weiss stated that the T rust had never sold the policy or given collateral assignment or otherwise encumbered the policy. However, Weiss testified that the Trust paid premiums for the policy and the face amount of the policy was eight million dollars. Based upon the testimony of Weiss, upon the death of Agi Weiss then Weiss' family and two (2) of his sisters wou ld receive the life insurance benefits. During cross examinati on Weiss was evasive and vague when he was asked about other li fe insurance policies owned by the T rust fo r Agi Weiss. Specifically, he stated several times "[i)t is possible'· or "'[i ]t could be'· or "[s]ome policies." Upon further questioning Weiss stated he be lieved there were three or fo ur other policies. but co uld not recall if any of those were issued by John Hancock .2 Additionally, Weiss testified in October 2013 he owned an insurance po licy through Mass Mutual on his mother's li fe. As to the management of the subject policy, Weiss testified that his office was responsible for the payment of premiums on the policy which was funded by "various accounts in our office." Weiss a lso testified that he was not direct ly involved in paying the premium for the subj ect life insurance policy, rather his secretary Dasi (also known as Mrs. Landau) was responsible for a ll premium payments. Ms. Lan stated on cross exam ination that "Mr. Weiss is 2 The Cou rt notes that a li fe insurance policy owned by Benjam in Weiss insuring the life Agi Weiss with Security Mutual Life fnsurance was issued on March 17, 1999 and was the subject of litigation for fai lure to timely pay the prem iums between November 19, 2008 and January 13, 2009. [Weiss v. Securitv Mutual Life Insurance, 146 A03d 842 (2d Dept 2017)]. or 5 5 of 41 [*FILED: 6] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 not involved in everyday operations." /\s to the account from wh ich the premiums were paid, Weiss testified that he did not think they were paid from the Trust account. Weiss qualified his answer indicating that he needed to check with hi s "secretary,'' but he believed that the money fo r the premium payments was taken from " the operation or our real estate business." During cross examination Wei ss was asked about whether he was aware that the policy went into default "from time to time'· without actually lapsing, wh ich he stated he only learned of that fact during the instant litigation. Turning to testimony regard ing the payment of the premi um in December 2013, Weiss testified that he "wasn't too familiar vvith it, because I was not involved directly. My office took care of that:· Weiss stated that the premium payment was approved through "the office in advance'· by himself and the sec retaries. Further, Weiss testified that he was not familiar with the term "grace." Throughout Weiss ' testimony he continuously stated that he had a lack of knowledge of the provisions within the subject policy. b. Testimonv of Frieda Land au a/ k./a Dasi La n Frieda Landau (here inafter Lan) testified on behalf of the Plaintiff regarding the procedure she undertook in mailing the premium payment on the subject Policy. Mrs. Landau testified that she is also known as "Dasi Lan" and that she has been employed by Weiss "under one of his entities" fo r eight years doing rea l estate managemen t, payroll, taking care of violations, legal collections and pay ing li fe insurance policies. Acco rding to Lan she was responsible for making payments on approx imately six insurance policies in 2013 . Lan testified that her procedure in 2013 fo r paying the premiums was as fo ll ows: "I wou ld look at the notice 6 6 of 41 [*FILED: 7] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 see when it is due, make sure to make payment in time, make sure I either make out a check, mail it out in time or overnight it in time, and make sure the check cleared, ro call up the company and make s ure they got i t.'' l ler understanding of ''grace notice" is that there is a certain amount of time to pay the policy before it lapses and her procedure in 20 13 was to make sure that the premium payment "gets there·· timely to ensure the pol icy did not lapse. Fu rther, she testified that " in time" meant to her ''before the la pse date." As to the subj ect po licy, Lan testified that it was not a po licy she was regularly respons ible fo r, but in December 2013 she was asked to send the premi um check owed on the policy. On cross examination Ms. Lan stated that Giti Mayer was responsibl e for handling the instant po li cy, "since it is a bigger policy.'' Further, Lan testified on cross examination that Mrs. Mayer dec ided when to make the premium payments on the subject policy. Lan testified that in paying the premium due in December 2013 she printed a check , made the FedEx Waybill, put it in an envelope and schedul ed a FedEx pickup on December 12, 2013. According to Lan ·s testimony on direct examination the FedEx label was created by going on to the online FedEx account, entering the information in their database, "the informat io n that comes up automatically," and print the FedEx Waybil l out. On cross examination Ms. Lan testified that Giti Mayer put the info rmation into the computer and Lan printed the check out. According to Lan, John Hancock was the payee on the pre-signed check3 which she placed into FedEx plastic along with a FedEx Waybill and wai ted for it to be picked 3 A copy of the check. the enve lope from Mass Mutual in which it was sent and a letter from Mass Mutual were all admitted into evidence as Pl ainti ffs Exhibit 2 in evidence. 7 7 of 41 [*FILED: 8] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 up for delivery.4 Lan also testified o n cross examination that the address on the check sent on December 13, 2013 was correct, but she placed the incorrect address on the FedEx Waybi ll. After sending the prem ium payment, Lan testified that she received a confirmation in her ema il that the aforementioned FedEx was de li vered based upon her request fo r confirmation. During Lan 's testimony she admitted that upon receipt of the delivery confirmation receipt she ··glanced at the screen'" and saw that the side of the email sa id "confirmed" and that there w as a s ignature and therefore she d id not look any fu rther.5 Lan testified that she subsequently learned on January 6. 2014 that the aforementioned premium check was never delivered to John Hancock. Further, Lan testiried that she never scrolled down on the confirmation page and therefore never looked at page two where the recipient's info rmation was located. Lan denied that she was aware o n December 13. 2013 , when she received the FedEx deli very confimrnt ion page. that the premium check she sent was incorrectl y sent to Mass Mutual (another insurance company). In terms of her procedure in paying the insurance prem iums, Lan testified that on Decem ber 16, 2013 she called Hancock to see if they received the aforementio ned premium check (despite believi ng it was received based upon the Fed Ex confirmation). According to Lan, 4 Upon review of Plaintiffs Exhibit 2 the Court notes the check was dated December 12, 201 3 and the address for Samuel Weiss on the check was P.O. Box 552 Brooklyn, New York 112 11 and the address for John Hancock was P.O. Box 7249-02 39 Phi ladelphia, PA 19170. The second portion of Plainti ffs 2 includes a photocopy of an envelope mailed Decem ber 18, 20 13 from Mass Mutual to Samuel Weiss. T he envelope a ppears to have a forwarding sticker from the Uni ted States Postal Service on the outside indicating that the ma il wo uld be fo rwarded to Samuel Wei ss P.O. Box 23024 Brooklyn, New York 11218-0248. 5 The co nfirmation email from FedEx to Dasi Lan was admitted into evidence as Plaintiff's Ex hibit 3. 8 8 of 41 [*FILED: 9] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 during the telepho ne conversation s he was told that the check was not in their system yet and was told to call back the next day .6 U pon being info rmed that the check was not in Hancock's system, M rs. Lan testified that she infonned the Hancock customer service representati ve that she received a confirmation that the prem ium was received on Friday. Plaintiff contends that Mrs. Lan was informed that " it was fi ne" regard ing the fact that the payment was not yet in 1lancock 's system on December 16, 201 3.7 According to Mrs. Lan her procedure was to verify that the check had been received desp ite the Fed Ex confirmation and that " [i] f payment wasn ' t received in the right time, we wou ld wire funds that day." Mrs. Lan stated during her testimony that she did not wi re funds on December 16. 20 13 when she was told that the premium check she had sent was not posted to the account. Dasi Lan testified she called Hancock again on December 17, 2013, but could not obtain any information s ince the re presentative refused to offer any info rmatio n and sought the answers to security questions. According to Lan 's testimony the representative from Hancock hung up on her and '·hu ng up on Ms. Lan w ithout offer1 ng any information.''8 The recording and transcript do not reflect that Lan was " hung up" on. but rather that she was told that the representative needed to s peak wi th the trustee. Accord ing to Ms. Lan 's testimony she called Hancock on Decem ber 17 to fo ll ow up to see if they had rece ived the premi um payment. On cross 6 Based upon the transcri pt of the telephone call the customer service representative informed Mrs . Lan that nothing had been received as to the subject insurance si nce September 1 1. 7 Plaintiff's 4 in evidence is the CD of the telephone call and Plain tiff's 5 in evidence is the transcript of the phone cal l. 8 P laintiff s 6 in evidence is the CD of the telephone call and Plaintiff's 7 in evidence is the transcr ipt of the phone call 9 9 of 41 [*FILED: 10] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 examination Lan was asked why she did not put Weiss on the telephone to confirm that he was the trustee and she indicated that "Mr. Weiss is a very busy man. I have a very bard time reaching him. So. if I can get around it. I l!y to ."' Ms. Lan testified that she again called Hancock on December 19. 20 13. but there is no testimony about the reason for that caJI or any issues that Ms. Lan had during that telephone call. 9 According to Plaintiff during the December 19. 20 l 3 telephone ca ll the Hancock representative was unable to provide any information "but stated that he will check with the correct department and cal l her back the foll owing day." Further, Plaintiff asserts during the December 19, 2013 telephone call with a Hancock representative Ms. Lan "begged to be called back within two hours, John Hancock promised to try," but never called back in two hours or the next day. Accord ing to Plaintiff, when Ms. Lan did not hear back from Hancock on December 19 or December 20 so she ca lled them again on December 23, 2013 . 10 The Plaintiff contends that during the December 23, 20 13 telephone call the Hancock representati ve (Robert) infom1ed Ms. Lan that the premium was recei ved in the Philadelphia office on December 13, but had not been received in billing so it was not applied to the policy. As a result, Plain tiff asserts that they relied on that statement by Hancock's representative and did not send a wire transfer of the funds to ensure the life insurance policy would not lapse. Ms. Lan testified that once she was made aware during the December 23, 2013 telephone conversation that the check was received she took no furthe r actio n. "[was like I just put the case out of my mind , that it was paid." Further, Ms. Lan 9 Plaintiffs 8 in evidence is the CD or the telephone ca ll and Plaintiffs 9 in evidence is the transcript of the phone call 10 Pl aintiff's IO in evidence is the CD of the telephone call and Plaintiff's 11 in evidence is the transcript or the phone call 10 10 of 41 [*FILED: 11] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 testified that she could have wired funds from another accow1t before December 26, 2013 to prevent the policy from lapsing. Ms. Lan testified that in January 20 14 she received a notice from Hancock that the subject policy had lapsed due to non-payment of the premium and called Hancock on January 6, 20 14 for clarification. According to the recorded te lephone call between Lan and the representative from the Hancock Plaintiff was told that the policy lapsed on December 26, 2013 . 11 Further, during the conversation Lan referred to the Fed Ex confirmation she received confirming delivery on December 13, 201 3 providing the tracking number, amount of the check and that she was previously informed that the check was received in Philadelphi a. Based upon the recording, Ms. Lan was informed by "Robe11" that he would email the billing team and research what occurred. Dasi Lan cal led Hancock again on January 6, 2014 indicating that she determined that the prem ium payment she sent had not cleared, that she figured out what happened and that she needed help. Lan ex plained that the prem ium payment was mail ed yo Mass Mutual instead of John Hancock and '\ve're in deep trouble.'' In response "Robert" from Hancock informed Lan that he also received an email from bi lli ng indicating that they did not ever receive the premium payment and therefore the policy lapsed on December 26, 2013. Ms. Lan sought to find out what happened wi th all the money that had been paid into the policy and she was infom1ed that the policy was cancelled and since the policy had no value '·it couldn't go further than the 261h:· Additiona lly. Lan asked what to do and "Robert'' informed her that reinstatement form s could be completed and explained the process to her. During the conversation Ms. Lan seeks to speak 11 Plaintifrs 12 in evidence is the CD of the telephone call and Plaintiff s 13 in evidence is the transcript of the phone call 11 11 of 41 [*FILED: 12] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 w ith a s upervisor and states ·'I understand that it's our error. Bui maybe there's someone that can work wi th us and see if something can be done si nce we did send out payment, it was j ust sent out to the wrong place." According to the testimony of Ms. Lan she received the check back from Mass Mutual after the January 6. 201 4 conversation wi th the 1-iancock representative. Lan also testified that she made a second premium payment on January 7, 20 13, the day after the conversat ion via a w ire, but that money was subseque ntl y refun ded . There was no testimony by Lan that she or anyone else working for Weiss ever attempted to fo llow outlined steps in seeking to reinstate the subject po licy after the lapse on December 26, 2013 . c. Deposition of Brian Latcham Prior to the close of the Plaintiffs case, Plaintiff's counsel sought to read a transcript into the record due to the unavailabili ty of the witness, Brian Latcham (herei nafte r Latcham). According to Plaintiff's counse l, the witness was a John Hancock corporate designee and Hancock advised Pla intiffs that he was unavailable to testify. In response, Defendant' s cou nsel c larifi ed that they were not consenting to the Latcham deposition being read into the record and noted that the deposi tion d id not occur in Toronto. Despi te the objections, no argument was made by eithe r party purs uant to Civil Practice Law and Rules § 3 l l 7(a)(3)(1-v) and no speci fi c ru ling was made by the Court. However, there was no dispute by Defendants that Latcham was out of the state and more than 100 miles from the courthouse. Additionally, the deposition was used by Plaintiff, an adverse party. However, the Court notes that in error, the depos ition transcript was never marked into evidence and was merely read from by Plainti ffs counsel. 12 12 of 41 [*FILED: 13] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 The porti on of Latham's deposition that was read addressed several areas. First, Plaintiff read the questions regarding whether Hancock accepts premium payments via wire transfer. Latham s tated that 1Jancock does accept premium payments by wire transfer and the location for those to be sent is ava ilable at the Customer Service Center and he believed on the websi te. As to the lapse notice Plaintiff asked if the due date for the min imum prem ium needed was known to the policy owner, Latham stated on the lapse notice in the instant action the payment was due by December 16, 20 13. Latham was also asked whether Hancock would have accepted a premium payment made on a date before December 16 and he indicated they wou ld have . As to a payment received on December 16, Latham also stated Hancock would have accepted that premium payment. Latham was fu11her questioned about dates after the aforementioned lapse date of December 16, 201 3. In his deposition Latham stated that the system l lancock uses sets the pol icy to terminate during the grace period a few days beyond the 6 1-day grace period and if a payment had come in during that additional period then it would be applied to a policy. According to Latham ' s testimony the same appl ied to a wire transfer that "hit" during that add itiona l period. Further, Latham explained in his deposition the period between the lapse date on the notice of December 16, 20 13 and the actual lapse date of December 26, 2013 was a difference of ten days rather than the administrative policy of Hancock of nine days due to Ch ristmas falli ng within those dates. In response to the read ing, Defendant opted not to read any portion of Latham's depositio n testim ony. 13 13 of 41 [*FILED: 14] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 PLAINTIFFS ARGUMENTS/CONTENTIONS The Plaintiff's are seeking to have the P o li cy reinstated arguing that the li te insurance policy would not have la psed but for a material misrepresentation made by Hancock to the Trust on December 23, 20 13. According to the Plaintiff, it is ·'undisputed" that if the Trust had made a payment o n December 23, 24, 25 or 26 of 20 13 then l lancock would have accepted that payment, considered the payment "timely," and the policy would not have lapsed. The Plain tiff co ncedes that the initial premi um payment sent by the Plain ti ff was mailed to the wrong address . However, P laintiff directs the Court to the testimony o f Dasi Lan (a/k/a Mrs . F rieda Landau), secretary of Plainti ff Weiss, in which she stated she repeated ly called Hancock to ensu re the payment was received by them as to the subject policy. Additionally, the Pla intiff directed the Court to the recorded telephone con versations between Ms . Lan and the Hancock representatives on December 16, 17 and 19 and 23, 201 4. The Plainti ff argues that during the conversations between M s. Lan and Hancock representati ves s he tried to detennine if the payment had been received for the instant policy. but was provided mis-i nformation upon which she relied and there fo re did not send a second premium payment until after she rece ived notice of the lapse. T he Plaintiffs al so asserted that Plaintiff has a internal procedure in which they do not lapse the po licy for nine (or te n) days after the last day of the grace period during which a check sent to the Plaintiff fo r a premium payment would have been accepted as timely. According to Plaintiff. the testimony o f Das i Lan demon strates that she detrimentally relied upon the statements rnade by Plaintiff s representati ves on December 23 , which was within the nine (or ten) day period between the end of the grace period and lapse, a time in which Plaintiff could have wired funds and the policy would not have lapsed . Plaintiff contends that they had the 14 14 of 41 [*FILED: 15] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 funds to wire before December 23, 2014 and but for the m isrepresentation by Hancock's representative they would have w ired funds and the po licy would not have lapsed. Plaintiff argues that "John Hancock has conceded that it would have accepted payment for the policy on or before December 26, 2013.'. As such the Plaintiff s argue that the doctrine of equitable estoppel should be applied based upon the ir showing of detrimental re liance on Defendant's misrepresentations. a. Plaintifrs A r~um en t that Forfeitures are Unfavo red bv Law/Equitable Es toppel Plainti ff contends that the law attempts to prevent forfeiture by lapse and tries to find any indication of waiver, estoppel or deficiency by an insurance company for the purpose of invalidating the lapse and cancellation of li fe insurance po licies. According to the Plaintiff~ the basi s of thei r belief that Forfeitures are unfavored by law is" ew York's long-stand ing and strong public po licy against the forfei ture of insurance policies through lapse." [Gallien v. Connecticutc Gen. Life Ins. Co., 49 F3d 878. 886 (2d C ir 1995)]. The Plaintiff argues that the facts as they were presen ted at trial "cone! us ively" prove that Defendant is estopped from declaring Plaintiff's policy was forfeited by lapse. Further. Plaintiff contends that when it is a ..close call, .. the "tie goes to the policyowner." According to Defendant, the New York State legis lature has also promu lgated this public policy against forfeiture by placing in the statutes a required notice before forfeiture of life insurance for nonpayment of premiums and that noti ce is to be strictly construed in favor of the insured. A lso, Plaintiffs argue that the statutes require specific conformation of notices of cancellation with the statutory provision. Further, Pl aint iff submits that any ambiguity is strictly 15 15 of 41 [*FILED: 16] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 construed against the insurer. b. Plaintiff Contends that the Notice Sent bv Defendant to Plaintiff is Ins ufficient The Plaintiffs also argue in their post trial memorandum that the lapse notice was also insufficient as it failed to inform the Pl aint iff where to send an overni ght or wire payment. According to Plaintiff, the failure of Plainti ff to include th is in formation in the lapse notice is a violation of New York insurance statutes [New York Insurance Law § 321 1(b)(2)] which req uire the insurer to inform the policy owner where to send the premiums. As a result. Plaintiff contends that the policy owner was left " to hunt fo r the correct place to send funds." The Plaintiff submits that if the proper wire or overnight payment information was included on the lapse notice then "the entire predicament would have been avo ided.'. Pl aintiff concedes that Defendant has one address on the lapse notice where payment can be sent, but that address does not allow for overnight delivery as it is a P.O. Box address. Further. Plaintiff admits that there is no case lav,1 or speci fie statutory section of ew York fnsurance Law wh ich addresses the various methods of payment an insurer accepts, but nonetheless argues that "the intent and spirit of the statute is clear: if an insurer accepts payment by wire or overnigh t mail. that information shou ld be supplied in the notice by the insurer." Additionally, Plaintiff asserts that Defendant has admi tted in testimony that they accept overnight and wore payments, but does not share that information with policy owners and results in the insured scrounging "the internet and other sources to find the correct place to send premiums." Plaintiff contends that is what occurred in the instant circumstance and therefore there was an additional violation of New York Insurance Law§ 32 1 l(b). 16 16 of 41 [*FILED: 17] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 c. Plaintiff Argues Defendant Sought Excess Premiums in the Lapse Notice Than Were Allowed bv the Terms of th e Policv The second argument raised by the Plaintiffs is that the lapse notice sent to the Plaintiff is in valid since the amount sought of $93.327.27, in the lapse warning exceeded the amount allowed by the terms of the policy. Specifically, the Plaintiffs argued in their opening and in opposition to the De fendanf s a pplication fo r a directed verdi ct that Section 10 of the subj ect Policy indicates that the default amount requested to bring the policy out of default is "equal to (a) plus (b) plus (c). Accordi ng to Plaintiff: based upon the policy subsection (a) is defined as the amount by which a ll unpaid monthly deductions exceed the net cash suITender value at the date of default , which Plaintiff asserts equals $27, 829.33 . Further, Plaintiff contends that in the subject policy there is a typographical erTo r in Secti on 10 and there is no subsection (c) and two subsections (b). Pl aintiff submits that the "first (b)" is defined as "the amount equal to three times the Monthly Deduction due on the date of the default,'. which they allege would have been $89,452. 62 . As to the "second (b) provis ion that is the "applicable premium charge," w hi ch Plaintiff contends would have been $2,419.94. Therefore, in their post trial memorandum the Plainti ff argues that due to the '"ambigui ty.. in the subject policy (a/k/a contract) that the "'ambiguity" must be resolved as a matter of law against the drafter, who was the Plaintiff. T herefore, Plainti ffs contend that the payment due would have to be ca lculated as the amount in subsection (a) and either subsection (b). which is less than the amount requested by Plaintiff in the default notice. According to the P laintiff, with the most favo rable reading of the policy the Pla inti ff could not have sought more than $27,829.23, plus $2,419.94 for a total of $30,249.27. Pl aintiff I7 17 of 41 [*FILED: 18] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 contends Defen dant viol ated the tem1s of their own policy by seek ing $93 ,296.20 resu lting in a voi d notice of lapse and reinstating the subject poli cy in full fo rce and effect. Pl aintiff further argues that even if the court believes Defendant should be allowed to reform the mistake I the subject policy to read they can demand (a) + (b) and the second (b) once the policy went into grace, the Defendant still requested more than allowed by Insurance Law§ 3203 . According to Plai nti ff.§ 3203 allows Defendant to seek premiums necessary to keep the subj ect policy in effect fo r three (3) months from the date the policy entered the grace period, whic h was October 16, 2016. Further, Plainti ff argues that the notice sent to Plaintiff, which was introduced into evidence, sought in excess of three (3) months of premiums ad failed to inform Plaintiff the aniount due to prevent the policy from lapsing as req uired by statute. DEFENDANT'S ARGUMENTS/CONTENTIONS The Defendant contends that the subj ect life insurance policy should be read like a contract with the timely payment of premiums an essential material term of the contract life insurance poli cy. Defendant notes that Section 11(a) of the subject policy states that the fa ilure to timely pay premiums on the policy will result in terminati on. Defendant cites a case from 1887 in support of the premise that timely payment of li fe insurance premiums is the ·'very essence of the contract" and the failure to comply with the requirement provides the insurance company the right to forfe it the contract. The Defendant asserts that the evidence testimony at trial demonstrated that the subj ect policy entered default on October l 6. 2013 triggering the sixty-one (61) day Grace Period. Further, Defendan t contends there is no di spute from Plaintiff 18 18 of 41 [*FILED: 19] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 they received the Lapse Warn ing Notice which indicated $93,3 27.27 was to req uired to be rece ived by December 16, 20 13 to avoid lapse. Defendant states that based on the testimony and evidence they have shown the premium was not received by them by December 16, 2013 to avoid lapse. Further, Defendant states that based on the test imony and evidence they have shown the lack of receipt of the premium resulted in the tern1ination of the subject insurance policy. The Defendant asserts that based on the Plaintiffs failure to comply with the terms of the default section of the subject life insurance policy that the policy automatically lapsed on December 16, 2013 and the fact that Plaintiffs would have ensured receipt of money by Defendant if they knew their premium had not been received is contrary lo the provisions of the subject policy. T he Defendants note that Plaintiff presented no evidence at trial and did not mention their opening anything about their allegati on in the Amended Complaint that the Grace Notice sent by Defendant to Plaintiff was defic ient and did not compl y with ew York Statutory law. According to Defendant. these arguments were first raised by Defendant in their post trial papers. onethcless. Defendant argues in their post trial submission that the test imony at trial demonstrated that Lapse Warning otice, Defendant's Ex hibit Bat trial , was sent to the Plai ntiff. Further. the witnesses testified that the Notice contained all of the information required under New York law and the terms of the Policy including the default amount owed by Plaintiff correctly calculated under New York Law. The Defendant asserts that Dasi Lan testified that she understood the Lapse Warning Notice and that the notice required payment by December 16, 2013 to avo id lapse. Further, Defendant notes Plaintiff fa iled to produce any evidence or ill icit any testimony at trial that demonstrated the Lapse Warning Notice did not comply with New York Insurance Law or the terms of the policy or that these alleged insufficienc ies prevented the 19 19 of 41 [*FILED: 20] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 Pl aintiff from paying the default amount time ly. Defend ant Co ntends Eg uitable Estoppel is Inapplicab le to the Instant Action Plaintiff argues that Defendant sho uld be equitably estopped in term inating the subject policy due to missteps and fai lures on behalf of the Defendant. The Defendan t asserts that the Plaintiff has failed to prove facts that would allow the application of the doctrine of equitable estoppel. Defendant contends that the application of equitable estoppel is not favored when the claimant was aware of information within the necessary time frame and instead did noth ing. Specifically, Defendant cites a mortgage foreclosure matter, Grafv. Hope Bldg Corp., 254 NYl, 4 ( 1930), in which the Defendant sought equitable relief due to a clerical error that resulted in a failure to subm it the payment owed on a mortgage. According to Defendant the Court declined to grant equitable relief because that would result in the Court interfering in a clear contract that existed between the parties. The Defendant also notes that clear contract obligations cannot be rejected due to judicial sympathy. Further, Defendant contends that Plaintiff failed to demonstrate they acted with diligence. Defendant notes that the Pl ainti ff was unfamiliar with the policy, testified that he never read the Lapse Warning Notice and stated that he delegated the duties of the Trust to his staff Based upon the testimony, Defendant argues that the failure to pay the instant life insurance premium timely was due to the negligent actions of Pl aintiffs emp loyee and the Defendant's actions did not cause the employee to send the payment to the incorrect address at the outset. Jn considering the cause of the negligence in the instant action, Defendant states that Plaintiffs Exhibit B (the notice sent to the Plaintiff) demonstrate that Defendant provided the 20 20 of 41 [*FILED: 21] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 correct mailing address for the premium and the date upon wh ich it was due for the payment to be con sidered timely. In support of this assertion, the Defendant directs the Cou11 to the testimony of Dasi Lan in which she stated that received an email confirming that the premium check was sent to the inconect location, but she did not scroll down and as such did not read it in its entirety. Further, Defendant argues that if the Plaintiffs employee. Ms. Lan , had read the email in its entirety then she would have been aware of her own mailing error timely and could have wired the fund s timely to avoid the lapse. As to the phone call s made by the Plaintiffs employee. the Defendants argue that they also fail lo prove her diligence since she was to ld in the phone calls before the premium was due, (on December 16), that the fu nds were not received and that she was only mi stold of the receipt of the funds after the lapse of the policy during a phone call on December 23 . Defendan t notes that in Ms. Lan's own words during the phone call she admi tted that the en-or in sending the payment (and therefore the cause for the lapse of the policy) was her fa ult, not the Defendants. Defendants argue the instant action was brought in an attempt to avoid o r nulli fy P la intiffs staffs own mistakes which caused the lapse of the insurance policy. The Defendant submits that the subject policy terminated as a matter of law on December 16 due to the Plaintiffs own negligence and equity cannot be used to relieve Plaintiff of the result of their own negligence and excuse Plaintiff's default Plaintiff Failed to Meet the Elements of Estoppel T he Defendant argues that the Plaintiff failed to show the following: (I) lack of knowledge and of the means of knowledge of the true facts (2) reliance upon the conduct of the party estopped and (3) prejudicial changes in their position. 21 21 of 41 [*FILED: 22] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 a. Plaintiff Had Means of Knowing that it Sent the C heck to the Wrong Insurer As to the first element, Defendants note that Ms. Lan testified that she sent the premium check to Mass Mutual Insurance rather than John Hancock and therefore she could not have lacked the knowledge or means of knowledge of the true facts. Further, Ms. Lan testi fi ed that she recei ved an email confirmation of the check delivery stating it was received by Mass Mutual instead o f John Hancock, but admitted she chose to only read a portion of the email. Defendant notes that Ms. Lan testified that if she had read the emai l in its entirety then she would have seen that she had sent the premium check to the incorrect insurer. Addi tionally, Defendant contends that they told Ms. Lan on December 16 and December 19'11 , in recorded telephone calls, that they had not received the check. Defendants argue that despite hearing from Defendant's customer service representati ve that the premium check was not received. Plai ntiff s employee did not veri fy if the check cleared or take a look further to locate of the deli very location in the confim1ation email. Therefo re, the Defendant submits that first element of equitable estoppel has not been proven since the Plaintiff had the knowledge or means to know the true facts, but chose to not read the entire email confirmation received upon delivery of the premium check sent or to veri fy i r the check had been cashed. b. Plaintiff Argues Defendant Made Misrepresentations which Plaintiff Detrimentallv Relied on and the Defendant Should be Eguitablv Estoppcd from Declaring Plaintifrs Policv Lapsed Plaintiff asserts that Defendant's customer service·s indication to Plaintiff on December 23, 20 13 that the payment sent on December 12, 20 13 was received and the policy would not 22 22 of 41 [*FILED: 23] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 lapse. equi tably estops Defendant from declaring Pl ainti ffs pol icy lapsed. According to Plain ti ff, they demonstrated all of the elements of equitable estoppel in the instan t action. Plaintiff asserts that in the testimony at trial Defendant's representatives conceded they would have accepted payment on the policy on or before December 26, 20 13. Further, Plainti ff states the testimony of Dasi Lan demonstrated Plaintiff made several attempts bet ween December 12, 2013 and December 26, 2013 to confirm Defendant received payment and was told on December 23 . 2013 that payment was received. Plaintiff argues that as a result of Defen dant 's representati ve· s statement, Plaintiff did not wire or send additional funds, wh ich Ms. Lan testifies she could have and would have if she was aware the payment she sent was not received. The Plaintiff contends that the testimony at trial demonstrates the most "egregious" mi srepresentations made by Defendant was during the December 23, 201 3 te lephone call betwee n Mrs. Lan and Defendant ' s customer service representative. Accordi ng to Plaintiff, the testimony showed Defendant's customer service representative told Mrs. La that the premium had been received by Defendant in their own Philadelphia office and that the payment had not been entered into their Billi ng Department. Further, Pl aintiff submits that the recording of the Decem ber 23, 20 13 call demonstrates that the premium payment would be appl ied to the policy as the date received, which was December 13 , 2013. Plaintiff notes that " the reading of the transcript does not fu lly reflect the emphasis in which John Hancock assured the trust that the payment was received." However, Plaintiff argues that the transcript "self-evidently" informed Mrs. Lan that the Defendant had the funds in their possession. c. Plaintiff Failed to Prove Ju stifi able Reliance Because the Defa ult Occurred After the 23 23 of 41 [*FILED: 24] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 Po lic'' Lapsed The Defendant argues that Plaintiff s asse11ion that they re lied on statements made in the telephone call \Nith Mr: Boileau on December 23 is fl awed s ince the policy lapsed earlier on December 16. Specifically, Defendants asse rt that a date after the lapse cannot demonstrate re liance, as the default had already occu1Ted. Defendants cite a Court of Appeals case Gilbert Frank Com. v. Federal Ins. Co., arguing that communications between Plaintiff and Defendant that occurred after the lapse of the Policy on December 16, 20 13 do not demonstrate estoppel. According to Defendant, the Plaintiff relies upon a call between Ms. Lan and Mr. Boileau which occurred seven (7) days earlier on December 16, 20 13, but provided no evidence that the reliance was coup led with the submission of the check to chc correct address or that Defendant had rece ived the check. Fu11her, Defendant's argue that if the Court considers the "reliance" of Plaintiff on Defendant's employee ' s statement on December 23, 2013, that reliance is unreasonable since Ms. Lan had the confirmation email in her inbox on December 13, 20 13, three (3) days before the due date, but chose to only read a portion of the email before December 16, 20 13. Additionally, Defendant asserts that Plaintiff' s reliance on the statement by Defendanr s customer service representative was unreasonable as a matter of law. In arguing the reliance was unreasonabl e as a matter of law, Defendant cites a assau County Supreme Court case in which the plaintiff contacted the defendant bank's tellers and customer service representatives several times and were told that a cashier's check in the amount of $6,470 had cleared on ly to be told five (5) days later that the check was dishonored causing the defendant to withdraw funds from the plaintiff's accou nt to cover an advance. [Amthor v. Commerce Bank, 15 Misc.3d 1130(A) (Nassau Cly Sup. Ct. 2006)]. Defendant's argue that the 24 24 of 41 [*FILED: 25] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 Co urt in INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 assau County cited the un iform Commercial Code (UCC) indi cating that the p laintiff bore the risk of loss until a check is settled. The Defendant's compare the facts of the instant matter to the facts in Amthor argui ng that the Pl aintiff here had an obligati on to ensure that the premium payment was received timely under the terms of the life insurance policy. Further, the Defendants argue that sim ilar to Amthor the Plaintiff cannot s hift the loss to Defendant through the claim of reliance on D efendant ' s employee 's m istake when the P laintiff's employee knew (or should have known) that the check was sent to the incorrect ins urance company and she never infonned the Defendant's employee that she had not read the entire confirmation email and that the email ind icated delivery to the wrong location . Defendant asserts that instead Plaintiff's employee ins isted (inco rrect ly) on each and every call with Defendant s employee that s he had received confirmation that the premi um check was delivered to Defenda nt. Finally. D efendant submits that Ms. Lan's reliance was unreasonab le as she relied on statem ents of Defendant's customer servi ce representative regarding the timely receipt o f' the policy prem ium despite the Policy having contrad ictory language. De fendant submits that the s tatement of Mr. Bo ileau on December 23 to the Plaintiff contradicted the Policy, the Lapse Warning Notice mad the Lapse Termination Notice. T he Defendant contends the language in the policy control s. d. Plaintiff Did Not Detrim entally Change its Position as a Res ult of Defend ant's Co nduct The Defendant argues that the call between Ms. Lan and the Defend ant' s customer serv ice representative on December 23 occurred seven (7) days after the Po licy had lapsed on December 16. as stated on the Lapse Warning Notice. According to Defendant, Plaintiff' s argume nt regarding the administrative delay in recording policy terminations, an internal 25 25 of 41 [*FILED: 26] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 procedure with in Defendant compa ny, extends the Plaintiff's time to pay the defa ult payment is contrary to New York Insurance Law. T he Defendant contends that the nine (9) day internal delay in record ing policy terminations does not extend the Grace Period for the Po licy since that pe riod is set forth by the tenns of the Policy and by ew Yo rk State Insurance Law§ 3203 . Further, Defendant argues that their ad mi nistrative " house ru le" of allowing nine (9) days to record policy term inations does not create or infer a legal duty on the part of the Defendant as it is not written in any insurance po lic ies ( including the s ubject policy) and is not communicated to poli cy holders in any documents sent to inform insureds of payment due dates. Add itional ly, Defe ndant states that Mr. King testified that the nine (9) day administrative de lay is a policy, which has been created by the Defendant since they receive so many checks per day they do not want to unintentiona lly term inate a pol icy when the prem ium check has been rece ived by Defendant, but has not been processed. Finally, Defe ndant submits that P laintiff cannot argue reliance on the Grace Period since no ev idence was o ffe red by P laintiff that there was an attempt to wire fu nds to Defend ant during the nine (9) day administrative processing delay. Based on the fo regoi ng, Defendant contends that no evidence was introduced by Plaintiff at trial that they were aware o f the adm inistrative nine (9) day delay in record ing po l icy tenninations prior to the December 23 phone ca ll s with Defendant 's Customer Serv ice Representatives and as such could not have re lied upon something they did not know on December 16th. 19th or 23 'd. e. Plaintiff Did Not Prove that Defendant Made a False Representation Knowing Plaintiff Would Rely on H According to the Defendant, Plaintiff has fa iled to demonstrate that Defendant engaged in 26 26 of 41 [*FILED: 27] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 conduct whi ch amounts to false representation or concealment of material facts, that there was an intenti on that Plain ti ff would act on Defendant's conduct and the Defendant had knowledge of the rea l facts. The Defendant contends that the Plainti ff fai led to introduce evidence at trial that demonstrated that Mr. Boileau's statement on December 23 was made with actual knowledge of the .. true facts" surrounding Plainlifrs attempted premium payment. In support of this assertion, Defendant submits that Mr. Boileau did not identify the amount of the prem ium or the policy number and specifically stated that .. billing and income" did not have the allegedly submitted premium check. Further, Defendant avers that no evidence was submitted that Mr. Boileau knew hi s statement was false or he made the statement for the purpose of preventing or discouraging the Pl aintiff from sending the premium check. Defendant Did Not Waive the Policy's Termination The Defendant argues that the December 23, 2013 call is nol a waiver of the termination of the Plaintiffs life insurance Po li cy. Defendant asserts that Plainti ff made a conclusory allegat ion that the Defendant waived the termination of the lil·e insurance but failed to identify a specific act of\:vaiver in the Complaint or ident ify one at the trial. Accord ing to Defendant, the caselaw indicates that when one waives a known ri ght they do it intentionally, but waiver cannot be created by neg!igence, oversight or thoughtlessness. Therefore. Defendant argues that the Plaintiff must prove that a party intentionally or vo luntarily waived a contractual right or advantage. Based upon the foregoing, Defendant contends that they did not waive anything. Defendants argue that their conduct did not waive anything, but rather Defendant confirmed the lapse of the policy in a letter written to Plaintiff and confi rmed the same during a 27 27 of 41 [*FILED: 28] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 telephone call on January 6, 2014. The Defendant also asserts that they demonstrated at trial the call between Mrs. Lan and the Defendant's customer service representative cannot be a waiver si nce Mrs. Lan .. misled .. the Defendant's customer service representatives by telling them during the calls on December 16, 17, 19 and 23rd that the check in question had been de! ivered to Defendant. Defendant contends Plainti IT knew these statements were in correct since she had an email confirmation from Federal Express that the subject check was delivered to Mass Mutual, not the Defendant. Add itional ly, Defendant submits that Defendant had no way to know the check the Plaintiffs representative Mrs. Lan was refening to had been sent to the wrong insurer and as such cou ld not have knowingly waived the termination of the policy. Defendant 's second argument as to the lack of waiver is that the subject policy contains "no-waiver clause" which only pro vides the President, Vice President, Secretary or Assistant Secretary of Defendant authority to waive or change any condi ti on or provision or the policy. Further, Defendant notes that these non-waiver clauses are enforceable under New York Law. Defendant submits that the customer service representative, whose statements had no authority Lmder the .. no-waiver clause" and therefore his statements/actions cannot be construed as a waiver. Add itiona lly, Defendant notes the Plaintiff did not rai se this at trial. Defendant ' s third argument as to waiver is that the Defendant' s acceptance ol'"late payments.. is not a waiver for all paymen ts. The Defendant references a Court of Appeals case indicating that an adm inistrative policy allowing/accepting late payments on a policy did not constitute a wa iver of the right to claim the policy lapsed. Further, Defendant contends that if Defendant accepts late payment on the subject policy or any other of their policies docs not constitute a waiver of payments. Additionally, Defendant submits Plaintiff neve r submitted 28 28 of 41 [*FILED: 29] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 evidence that a late payment was accepted on the subject policy. Plaintiff Contends the Typographical Error in the Policv is Irrelevant At the outset, Defendant noted that the Plaintiff cross examined Defendant's witness Brian Latham regarding the typographical error in the subject policy, whic h Plaintiff admitted into evidence as Exhibit I. However, Defendant argues that there is no cause or action plead in the original Complaint or Amended Complaint regard ing the typograph ica l error and it was never mentioned during Plaintiffs opening arguments. Further. Defendant submi ts that none of the Plaintiffs witnesses ever testified that they were aware of the error or that they had read the policy and detrimentall y relied on the typographical error which caused them to be misled or confused . Despite the failure of Plaintiff to raise the typographical en-or in their Complaint or in opening the Defendant addressed the argument within their post trial memorandum. The Defendant contends that a typographical error does make a contract ambiguous and whether a writing is ambiguous is a question of law which the court must resolve the typographical error at issue. Section 10 of the subject policy which provides the formu la as to how the premium default is calculated and is the section in which the Defendant concedes there is an error. The Defendant argues that the formula that is listed in the policy complies with Insurance Law§ 3203(a)( l) which requires the insurer collect an amount to keep the policy in effect for three (3) months from the date of default. Defendant asserts that if the formula set forth in the policy before the incorrect li st (which includes 2(b)s and no (c)s) is followed, the proper amount set 29 29 of 41 [*FILED: 30] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 forth in ~ INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 3203(a)( 1) is obtained. According to Defendant, if the list is followed, then the payment that results is not in compliance with Insurance law* 3203(a)( 1) and \\'Ould be insufficient to cover monthly deductions during the Grace Peri od. The Defendant submits that case law indicates that when presented with two (2) interpretations of an instrument, one that result in a legal conclusion and one in an illegal conclusion courts favor the legal alternati\·e. In consideri ng the Plaintiff's interpretation or Section I 0 of the subject policy, Defendant subm its that Plaintiffs interpretation is unreasonable. Defendant argues based upon the explanation of the fo rmula as set forth in the section. to folio"" the li st with t\\'O (2) (b)s ad no (c)s wou ld resu lt in a nonsensical amount for default. The Defendant cites caselaw fo r the contention that a reading or interpretation or a contract that results in a .. superfluous" formula should not e followed by a court as it \\·ould alter the intent or the parties who entered into the contract. According to Defendant, in this circumstances where "absurdity has been identified" which would cause the contract to be unenforceable the court can reject the words or .. supply" words to make the contracts mean ing clear. As such. Defendant submits the on ly reasonab le interpretati on or Section I 0 in context of the policy with §3203 of Insurance Law is that Defendant charges the three (3) components of the formula (a) + (b) + (c). The Oclcndant contends that the Plaintiff failed to introduce evidence or an expert to testify that the default amount set forth in the lapse notice was inconecl. Defendant cites to the trial transcript asserting that upon questioning by the Court regarding the calculation for the default amount. Plaintifrs counsel stated they did not introduce any evidence as to the correct amount or the interpretation of the policy. 30 30 of 41 [*FILED: 31] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 LAW AN D COURT'S FINDINGS a. Equ itable Estoppel The bas is of equitabl e estoppel is in the idea of fa ir dealing and good conscience w ith the purpose of he lping law with the adm ini stration of justice, where injustice would be the resu lt. [Readco, fnc. v. Manne Midland Bank, 81 F3d 295, 301 (2d Cir 1996)]. Equitabl e estoppel is "imposed by law in the interest of fairness to prevent the enforcement of ri ghts which would work fraud or injustice upon the person against whom enforcement is ought and who, in justifiable reli ance upon the opposing party's words or conduct, has been misled into acting upon the be li ef that such enforcement would be sought." [Readco, Inc. v. Marine Midland, 81 F3d at 301]. To properly invoke equitable estoppel must show that enforcing rights of one party would create an injustice on another party due to the latter party 's justified reliance upon the farmer's words or conduct. [Kosakow v. New Rochelle Radiology Assocs., P. C., 274 F3d 706, 725 (2d Cir. 200 I )] . The e lements of estoppel as to the party estopped are: (1) co nduct which amounts to false re presentation or concealment of material facts, (2) intention that such conduct \.vill be acted upon by the other party and (3) knowledge of the real facts. However, the party asserting the estoppcl must demonstrate as to themself: ( I) lack of knowledge o f the true facts, (2) re liance upon the conduct of the party estopped and (3) a prej udicial char1ge in its pos ition. " fPirst Un ion National Bank v. Tecklenberg, 2 AD3d 575 (2d Dept 2003 ) quoting Airco Alloys Div. v. Niagra Mohawk Power Corp .. 76 AD2d 68, 81-82 (4th Dept 1980)]. If the evidence fa ils to show a party was mi s led by another' s conduct or that the party significant ly and justifiably relied on conduct to its disadvantage, then an essential element of the estoppel is mi ss ing. [Wallace v. B.S.D. -MRea/1y, LLC, 142 AD 3d 70 1. 703 (2d De pt 201 6)]. The doctrine of equitable estoppel 31 31 of 41 [*FILED: 32] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 "is to be invoiced sparingly and only under exceptional circumstances." lNowinski v City of New York, 189 AD2d 674, 675 ( Jst Dept 1993)]. The Court finds that the Plaintiff has failed to demonstrate the three elements of equ itable estoppel as to the Defendant in the instant action. Plaintiff presented insu f'fi cient evidence at trial to establish Defendants falsely represented to Plaintiffs that the premium checked mailed by Dasi Lan on December 13, 30 13 was received by Defendant. Rather, the Court finds that Defendant' s customer service representative in the phone conversations between December 16 and the 23rd responded to the assertions being made by Mrs. Lan when she called the Defendant. Mrs. Lan continually informed the Defendant's customer service's representatives that she had in her possession a delivery confirmation indicatin g that the check she sent was rece ived by Defendant, despite neg li gently not reviewing the entire email. The Plaintiff's employee' s negligence was the reason that the Plaintiff's policy lapsed on December 16, 2013, not the representations made by the Defe ndant ' s customer service representatives in the various phone calls. one of the Defendant 's customer service representati ves had any knowledge of the contents of the delivery confirmati on referred to by Mrs. Lan. Spec ifically, Mrs. Lan 's own negli gence in reading the delive ry receipt caused her to misinform Defendant regarding the status of the delivery of the premium check. Therefore, Plaintiffs have failed to demonstrate that Defendant' s customer service representative conduct amounted to false representati ve or concealment of material fac ts or that Defendant had knowledge of the real facts. As to the element o f' detrimental reliance, Plaintiff failed to show that the misstatement by Defendant's customer service representative on December 23, 20 13 caused Plaintiff to detrimentally change thei r pos ition. The main issue here is by the time Ms. Lan contacted 32 32 of 41 [*FILED: 33] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 Defendant and spoke with Mr. Boileau on December 23, 2013 the subject policy had lapsed seven (7) days ea rlier. The Plaintifrs argument that they reli ed upon the delay that Defendant has in the inpu tting of checks in thei r system also lacks merit. The Plaintiff provided no testimony or evidence that Mrs. Lan or anyone else working for Pl aintiff was aware that an internal administration delay existed at Defendant company in which they accepted check and inputted them. In fact, the testimony at trial was that the delay was something Pl aintiff only became a"vare or after commencing the instant action. The Court finds that since the Plaintiff was not aware of the existence of the Defendant's internal ad ministrative poli cy allowing a grace period for them to enter the voluminous checks they received, there is no way that Plaintiff detrimentally relied on a policy they were unaware of. As such. Plaintiffs have failed to prove two (2) out of three (3) elements of eq uitable estoppel as to Defe ndant. b. Waiver of Policy ·'Waive r is an intentional re li nquishment of a known ri ght and should not be lightly presumed.'' [Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988); S & £Motor Hire Corp. v..New York !ndem Co., 255 N Y 69, 72 (1930)]. The communications between an insured and insurer be fore or after the expiration of a limitation period set forth in a policy without more are insut1icient to demonstrate waiver or estoppel. [Gilbert Frank Corp. v. Federal !ns. Co. , 70 NY2d at 966]. The Pl aintiffs presented no evidence at trial or elicited any testimony which demonstrated a ..clear manifestation'" of intent by Defendant to relinquish the protection of the contractual 33 33 of 41 [*FILED: 34] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 lim itations pe ri od. There is also nothi ng in the evidence which showed that during the telephone conversations between Plaintiff and Defendant fro m December 16 through December 23 that the Defend ant encouraged or "lulled" Plaintiff into fo regoing any of their rights as set forth in the po licy. lBotach Management Group v. Gurash, 31 NYS2d 80 (2d Dept 2016)]. In short, the Plaintiff was not estopped by Defe ndant from wiring funds to ensure receipt. [Van Hoesen v. Pennsylvania Millers Mut. Ins. Co., 86 AD2d 733 (3d Dept I 982)]. Additionally, the telephone calls made by Dasi Lan on behalf of Plaintiff to determine whether Defendant received the premium check she mailed to them alone is insu ffi cient to prove waive or estoppel on part of the Defendant. [Botach Management Group v. Gurash, 31 YS2d at 82]. Pl ai ntiff has failed to provide additi onal admiss ible evidence which along wi th the statements made by a customer service representative (not an authorized person under the waiver section or the subject insurance policy) was sufficient to demonstrate that the Defendant waived its ri ghts to terminate the life insurance poli cy issued for Agi Weiss. As such, the Court finds that argument rai sed by Plaintiff fails. c. Notice of La pse The Court notes that Benjami n Weiss made a sim ilar argument regarding the suffi ciency of the premium notice in matter regarding another life insurance policy fo r Agi Weiss 12 in Suprem e Cou rt, Kings County, wh ich was appealed to the Appellate Divis ion. Second 12 The Court is unsure if the Agi Weiss referred to in the Kings County matter is the same as the Agi Weiss in the instant matter, but the Court notes that the Pl aintiff in the Kings County Matter, Benjamin Weiss, was represented by the same counsel as Pl aintiff in the instant action (Lipsius-Benhaim Law. LLP). 34 34 of 41 [*FILED: 35] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 Department, and the Supreme Court's Decision and Order was Affirmed. [Weiss v. Security Mut. L{fe Ins. Co. OfNew York, 146 AD3d 842 (20 17)]. In the Kings County Weiss matter, the Plaintiffs fa iled to seek reinstatement of the policy within the one year peri od after the po licy expired and that policy had exp ired after missed a premium payment. The plaintiffs in the Kings County Weiss action argued that the premium notice mailed to them by the defendant insurer fa iled to comp ly with the statutory requirements and that they relied upon the insuffic ient notice and as such the defendant insurer should have been collaterally estopped from cancelling the life insurance poli cy. The Appellate Division, Second Department found that whether the premium notice comp Iied with the statutory requirements in Insurance Law § 321 1(b) was not relevant, as the policy had lapsed by its terms and in accordance with the insurance law statute one year after the plain ti ff mi ssed the premium payment and plaintiff failed to seek timely reinstatement of the po licy. Under New York Law, a notice of termination of a life insu rance policy due to default in payment of the premium must be mailed to an insured at least fifteen and no more than forty-five days prior to the day when the payment is to come due. [Insurance law§ 32 11 (a)(l )). Further, the notice sent by the insurer must ·'state the amount of the payment, the date when due, the place where and the person to whom it is payable." [Insurance Law§ 3211 (b)(2)]. Courts have indicated that " fal lthough forefiture of life insurance coverage fo r late payment of premi ums is not favored in the law, these noti ce requirements should not be construed as creating a trap for either the insurer or the insured. " [Stein v. Am. Gen. L(fe Ins. Co., 665 Fed. Appx. 73, 76 (2d Cir 201 6)]. In Blau v. Allianz l{fe Insurance Company o.f North America, (a Second Circuit matter), the plaintiff made the same argument ra ised in the instant action which was that the defendant 35 35 of 41 [*FILED: 36] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 failed lo satisfy the insurance Law§ 32 I I (b)(2) requirements and as such the defendant was not able to lapse the policy at the conc lusion of the Grace Period. [2018 WL 949222 (2d C ir February 16, 20 18)]. In the instant action, the C ourt will fo ll ow the ruling of the Second Department in Weiss v Security Mut. Life Ins. Co. of Ne w York as to the argument regarding the sufficiency of the lapse notice and the Plaintiffs defense of equitable estoppel. Therefore, the Court fi nds that it is not re levant whether the premium notice (Notice of Lapse) mailed by the Defendant to the P la inti ff complied with the statutory requi rements rel ied upon by the P lainti ff, as set forth in insurance law§ 3211 (b), because the su bject life insura nce policy lapsed by its terms s ince the Plaintiff failed to make the premium paym ent by December 16, 2013 , the six ty-fi rst (6l51) day of the Grace Pe riod, as requi red by the instant li fe insurance policy. onetheless, the Court reviewed the Grace otice sent to the Plaintiff in October 20 13 and noted that it contained a n address fo r the Defendant for w hich the Plaintiff to remi t payment. Pla inti ff argued that there was not an address on the G race N otice that a llowed fo r overnight payments and that the Grace Noti ce only contained an address fo r regular delivery. The Court heard testimony that the Plaint iff had previously rem itted payment on the subject li fe insurance policy, ind icating that they were aware of how to send the payments with the Grace Notice stu b. Additi onally, Das i Lan testified that she was in volved in pay ing several of the life insurance po licies owne d by the Pla intiff a nd that she was a ware of the proced ures, which included p lacing the payment stub attached to the Grace Notice into a Federal Express envelope a long with the check a nd re mitting the enve lope to the address on the Grace of ambiguiry in the October Grace otice. Therefore , given the lack otice, as well as the Plaintiffs history in making payments 36 36 of 41 [*FILED: 37] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 using the Grace INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 otices previously and the Plaintiff s employee's testimony that she was aware of the procedure to follow and was able to follow the instructions on the Grace otice. T he Court find s that the argument that the Grace Notice lacked an address to send overnight payments is a red herring, as the Defendant is not required pursuant to ew York Insurance Law to provide multip le addresses depe nd ing on the manner in which the Plaintiff wishes to send the prem ium to the insured . The P lai nti ff seeks to add a requirement to the statute, whi ch has not been placed by the legislature onto the insurance companies. The Court finds the Grace Notice . conta ined an address to which the Plaintiff could send the premium and that the Plaintiff could not have been confused or prejudiced by the failure of the Defendant to provide a different address for overnight mail ing, a choice of the type of mailing made by the P laintiff. As to the amount due, the Co urt notes that the Grace ot ice clearl y provides the amount due as required by Insurance Law § 32 11 (b )(2) based upon the fo rmula set forth within the instant policy. New York Law req uires a lapse notice to conta in "the amount of [the prem ium requ ired to save the policy from default] ." Blau v. Allianz Life Insurance Company of No rth America, 2018 WL 949222 (2d Cir February 16, 20 18) citing Insurance Law§ 3211 (b)(2)]. The Court in Blau noted that § 3211 does not specifically state that the amount provided in the notice must be correct, but notes that courts in states with similar provi sions have read that requirement into ew York 's Statute. Therefore, in a circumstance in which the premium listed in the Grace Notice is higher than the amount owed, than then the notice would not be sufficient to cancel the po licy. [Blau at *3 -*4]. In Blau the Plaintiffs provided expert testimony in w hich the expert ind icated that the request made by defendant insurance company in the Grace otice was for four (4) months of monthly deductions, rather than three (3) months as requ ired by the grace section 37 37 of 41 [*FILED: 38] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 of the life insurance policy. Additionally, in Blau the Court noted that the defendant nor defendant' s expert rebutted the premium amount o ffered by plaintiffs expert and there was no testimony from defendant as to how the amount on the Grace Notice was calcul ated. As a result of that failure, the Blau Court found there was an issue of material fact as to the amount due in the Grace Notice and they cou ld not find that the policy lapsed due to the plaintiff's failure to c ure. T he instant action is di stinguis hable from Blau in that the Pl aintiff's fa iled to proffer an expert or any testimony during their case in chief, in cross ex amination or in rebuttal which provided admissibl e evidence as to the basis for their argument that the amount in the Grace Notice was in excess of the amount owed to prevent the pol icy from lapsing. In contrast, Defendant 's witness testified as to the manner in w hich the amount o n the Grace otice was obtained and prov ided the calculations within hi s testimony. Plaintiff during cross examination raised an issue as to a topographical en-or within the policy which if fo llowed would result in the inconect amount due on the Grace Notice. The Pl aintiff, with no basis for the argument, asserted that the Defendants s hould have followed the topographical error, which would have resulted in the incon-ect amount owed. Defendant' s witness testified that above the listing with the typographical error in the policy is the correct fo rmula, which the Defendant foll owed and which would yield the statutorily required amount due on the Grace Notice. The Plaintiff seeks the Court to find fo r the Plai ntiff in their interpretation of the ambiguous terms in the policy and therefore find that the amount due in the Grace Notice was incorrect as per§ 3211. The Court finds that the argument rai sed by Plaintiff lacks merit. as discussed below. The Court finds that the Grace Notice sent to the Plaintiff in the instant action has the correct amount due to prevent 38 38 of 41 [*FILED: 39] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 lapse of the s ubject life insurance poli cy. d. Contract T erms The court fi rst notes that "an insured is bound by the terms of a contract w hether read or not." [Bitman Constr. Cofp. v. Insurance Co. ofN. Am. , 66 Y2d 820, 823 (1985 )]. "The unambiguous terms of an insurance contract must be accorded the ir plain and ordinary meaning ." [N IACC. LLC v. Greenwich Ins. Co., 5 1 ADJd 883 884 (2d Dept 200 8)]. Am biguity of terms m ust be construed against the insurance company, as they are the drafter of the poli cy. [Guardian L(/e Ins. Co. of Am. v. Schaefer, 70 NY2d 888, 890 ( 1987)]. Under New York Law.... whether a contract is ambi guous is a matter of law for the court to decide and parol evidence is not adm issible to create an ambiguity. [General Elec. Capital Corp. v. Volchyok, 2 A D3d 777 , 778 (2d Dept 2003)]. ·'A contract is ambiguous w here reasonabl e minds could differ on what a tem1 means, bit no ambigui ty ex ists where the alternative construction would be unreaso nable." [Reudco, Inc. V. Marine Midland Bank. 81 FJd295 (2d Cir 1996]. The courts have stated that the test fo r ambiguity is --whether the language in the insurance contracts is ' susceptibl e of tw o reasonab le interpretations." [N IACC, LLC v. Greenwich ins. Co., 5 l AD 3d at 884 citing MDW Enters \'. CNA Ins. Co., 4 AD3d 338, 340-341 (2d Dept 2004)]. Further, the courts state that the '·fo cus o f the test is on ' the reasonab le expectations o r the average insured upon reading the policy.,,. [NJACC, LLC v. Green wich Ins. Co., 51 AD3d at 884 citing Penna v. Federal Ins. Co., 2 8 A D3 d 731 , 732 (2d Dept 2006)]. In considering the am biguous terms in the subj ect li fe insurance poli cy, the Court fi nds that even construing the ambiguity against the Defe ndant, it is clear that the intent of the parties 39 39 of 41 [*FILED: 40] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 was to comply with the fo rmula for the determination of the amount owed for a lapse notice set fo rth in the ew York Insurance Statutes. Fo r this Court to find the terms of the Grace ot ice calculation as sought by the Plainti ff wou ld render an amo unt that would be incons istent w ith the amounts required by New York State Ins urance Law. In determining how to interpret an ambiguous portion of a contract, the Cou rt w ill not fi nd fo r a meani ng that contradicts with valid law over an illegal interpretation. As such, the Court fi nds that the Defendants interpretati on of the contract terms in the G race Notice are cons istent w ith New York State Insurance Law. As such, the amount calcu lated as to the fom1ula set fo rth in the Grace otice section included in the subject Lapse Notice was correctly determined by the De fendant and does not require the Court tO reinstate the properly cance lled li fe insu rance policy for Agi Weiss. The Comt has considered the remainder of the factua l and legal contentions of the parties, and find s them to be either without merit o r rendered moot by other aspects of this Decis ion and Order. Counsel fo r Plaintiff shall retrieve fro m the Part C lerk of the Court any exhibits introduced into evide nce within twenty (20) days from the date of thi s Decision and Order. Accordingly it is he re by, ORDERED that all of the F irst, Second and Third causes of actio n raised in the Amended Complaint are all dismissed; and it is further ORDERED that the instant acti on is dismissed ali:er trial after a finding for the Defendants: and it is fu rther ORDERED that all fuhire court appearance are vacated and the matter is marked 40 40 of 41 [*FILED: 41] ROCKLAND COUNTY CLERK 02/14/2019 02:58 PM NYSCEF DOC. NO. 119 INDEX NO. 035397/2014 RECEIVED NYSCEF: 02/14/2019 disposed . The foregoing constitutes the Decision and Order of the Court after trial. Dated: New City,jjew York February/{_, 2019 Hon. Thomas E. Walsh II, J.S.C. TO: LIPSIUS-BENHAIM LAW, LLP Attorney for Plaintiff 80-02 Kew Gardens Road Suite 1030 Kew Gardens, New York I I 4 I 5 KELLEY DRYE & WARR.EN LLP Attorney for Defendant IOI Park Avenue New York, New York IOI78 41 41 of 41

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