Stein v. American General Life Insurance Company
ORDER granting 90 Motion for Summary Judgment -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Defendant's motion for summary judgment is granted in its entirety and this action is DISMISSED. The Clerk of the Court is directed to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 9/28/2015. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ALLEN STEIN, as Trustee of the Rachel Meisels
Irrevocable Trust 2006B,
AMERICAN GENERAL LIFE INSURANCE
DORA L. IRIZARRY, United States District Judge:
MEMORANDUM AND ORDER
The Court assumes familiarity with the facts of this case, which are set forth in detail in the
Court’s Memorandum and Order dated July 22, 2014 (the “July Order,” Dkt. Entry No. 82). The
following summary, therefore, will recite only those facts relevant to this decision (the
Plaintiff brought this action against Defendant seeking a declaration that the Policy did not
lapse due to nonpayment of premiums. July Order, at 1. On May 18, 2009, the Policy’s balance
was insufficient to cover the monthly deduction. Id., at 2. As a result, Defendant generated a
“Grace Period Notice” (the “May 18, 2009 Notice”), and mailed it to Plaintiff. Id., at 2 and 10.
Defendant addressed the May 18, 2009 Notice to the policy owner, which in this case was the
Trust. Def. Sup. Mot., at 3.
The May 18, 2009 Notice informed Plaintiff that the Policy had entered the grace period,
and that the Policy would terminate unless Plaintiff remitted $22,361.91 before July 20, 2009. Id.,
Unless otherwise indicated, the Court incorporates all party-name abbreviations and designations from the July
Order in this Decision.
at 2. Defendant’s full name and address appear in the top left-hand corner of the May 18, 2009
Notice, and the logos for both “American General” and “AIG” appear in the top right. May 18,
2009 Notice. A payment stub, with Defendant’s address and the payment amount owed, appears
at the bottom of the May 18, 2009 Notice. Id. The body of the May 18, 2009 Notice directs
Plaintiff to address any questions to the Plaintiff’s servicing agent, or the Defendant’s customer
service center. Id. The servicing agent’s name (Joseph Lowinger), address, and phone number
also appear in the body of the May 18, 2009 Notice, along with the 1-800 telephone number for
the customer service center. Id.
On October 15, 2013, the parties cross-moved for summary judgment. Dkt. Entry Nos. 7578. One of the issues raised in the motions was whether the May 18, 2009 Notice complied with
New York Insurance Law § 3211. July Order, at 10. With respect to this issue, the Court held that
the May 18, 2009 Notice adequately stated the amount of the payment owed and the date due. Id.,
at 10 and 14. However, there remained a genuine issue of material fact on the question of whether
the May 18, 2009 Notice properly identified the place where and to whom payment was due. Id.,
at 13. Specifically, the Court found that Defendant had not provided any admissible evidence in
support of two of its key arguments: (1) that Defendant would have accepted payment to any of
the entities 2 listed on the May 18, 2009 Notice; and (2) that Plaintiff had previously made payments
To clarify, in section II.B.3, on page 13 of the July Order, the Court inadvertently omitted the words “three
corporate” before the word “entities” in the following sentence: “While Defendant asserts that it would have
accepted a check made out to any of the entities listed on the [May 18, 2009 Notice], it has not cited any admissible
evidence in support of this assertion.” This omission appears to be the basis for the magistrate judge’s direction to
the parties to exchange discovery on “whether the defendant would have accepted a check made out to any of the
four entities listed on the [May 18, 2009 Notice]” (emphasis added). Defendant’s reply and opposition to Plaintiff’s
summary judgment motion clearly argues that Defendant would have accepted payment to any of the following
three corporate entities: American General Life Insurance Company, American General, or AIG. See Def.’s Reply
and Opp. to Pl.’s Mot., at 7 (Dkt. Entry No. 77) (“[A] premium check timely received and made out to any of
[American General Life Insurance Company, AIG, or American General] would have been negotiable and
accepted.”). Similarly, Defendant continues to advance that argument here, i.e. that it would have accepted payment
to any of the three corporate entities. Def.’s Supp. Mot., at 6 (Dkt. Entry No. 90-1). To the Court’s knowledge,
Defendant has never argued that it would have accepted payment to the servicing agent listed in the May 18, 2009
in response to other grace period notices. Id. On July 29, 2014, the magistrate judge directed the
parties to exchange discovery regarding these two discrete issues. See July 29, 2014 Minute Entry,
Dkt. Entry. No. 83.
On March 31, 2015, Defendant filed its supplemental motion for summary judgment,
which Plaintiff opposed. Dkt. Entry Nos. 90-92. In support of its motion, Defendant submitted
copies of three checks for premium payments made by the Trust. Sutton Supp. Decl., Ex. 15, Dkt.
Entry No. 90-2. The checks were made payable to AIG, American General Life Insurance, and
American General, 3 respectively. Id. According to the Supplemental Declaration of Debbie
Sutton, Defendant accepted each of these checks, in accordance with Defendant’s normal practice
during the period the Policy was in force. Id., at ¶¶ 2-3. Sutton is Defendant’s Director of
Customer Services, whose responsibilities have included oversight of customer premium
payments. Sutton Decl., at ¶ 1, Dkt. Entry No. 75-4.
Defendant also submitted a copy of a “Grace Period Notice” Defendant mailed to Plaintiff
on June 17, 2008 (the “June 17, 2008 Notice”). Id., Ex. 16. Defendant addressed the June 17,
2008 Notice to the insured, Rachael Meisels, who was designated as the payor of the premiums at
that time. Id., at ¶ 4. With minor exceptions, the June 17, 2008 Notice is nearly identical to the
May 18, 2009 Notice with respect to formatting and content, i.e., placement of Defendant’s full
name and address, logos, servicing agent information, etc. Id., at ¶ 5; compare June 17, 2008
Notice with May 18, 2009 Notice. The June 17, 2008 Notice requested payment of $21,393.86 by
August 18, 2008. June 17, 2008 Notice.
Notice. Accordingly, the analysis that follows focuses on whether Defendant has adduced sufficient evidence that it
would have accepted payment to any of the three corporate entities.
When referring to AIG, American General Life Insurance, and American General collectively, the Court will
hereinafter refer to these entities as the “Three Corporate Entities.” Although this designation suggests that these are
three separate entities, the Court takes judicial notice of the fact that American General and American General Life
Insurance are the same entity. See, Sutton Supp. Decl., at ¶ 2.
In response to the June 17, 2008 Notice, Plaintiff mailed Defendant a check, dated July 1,
2008 (the “2008 Check”), for $21,394 made payable to “AIG.” Sutton Supp. Decl., Ex. 17; id., at
¶ 6. Plaintiff mailed the check, along with a copy of the June 17, 2008 Notice, to the address
provided for Defendant in both the June 17, 2008 Notice and the May 18, 2009 Notice – P.O. Box
4373 Houston, TX 77210-4373. Id., Ex. 17. Defendant received the check and the June 17, 2008
Notice, cashed the check, and continued the Policy in force. Id., at ¶ 6. Defendant submitted
copies of the check and the June 17, 2008 Notice that Plaintiff mailed to Defendant as an exhibit
to the summary judgment motion.
Summary Judgment Standard
Summary judgment is appropriate when “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “In ruling on a summary judgment motion, the district court must resolve all ambiguities,
and credit all factual inferences that could rationally be drawn, in favor of the party opposing
summary judgment and determine whether there is a genuine dispute as to a material fact, raising
an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F. 3d 184, 202 (2d Cir. 2007)
(internal quotations omitted).
A fact is “material” within the meaning of Rule 56 when its resolution “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is “genuine” when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. To determine whether an issue is genuine, “[t]he inferences
to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must
be viewed in the light most favorable to the party opposing the motion.” Cronin v. Aetna Life Ins.
Co., 46 F. 3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655
(1962) (per curiam) and Ramseur v. Chase Manhattan Bank, 865 F. 2d 460, 465 (2d Cir. 1989)).
“[T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn
in his favor.” Anderson, 477 U.S. at 255.
However, “[w]hen opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris,
550 U.S. 372, 380 (2007).
The moving party bears the burden of “informing the district court of the basis for its
motion, and identifying those portions of [the record] . . . which it believes demonstrates the
absence of a genuine issue of fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotations omitted). Once the moving party has met its burden, “the nonmoving party must come
forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted). The nonmoving
party must offer “concrete evidence from which a reasonable juror could return a verdict in [its]
favor.” Anderson, 477 U.S. at 256. The nonmoving party may not “rely simply on conclusory
statements or on contentions that the affidavits supporting the motion are not credible, or upon the
mere allegations or denials of the nonmoving party’s pleading.” Ying Jing Gan v. City of New
York, 996 F. 2d 522, 532-33 (2d Cir. 1993) (citations and internal quotations omitted). “Summary
judgment is appropriate only ‘[w]here the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.’” Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F. 3d
134, 141 (2d Cir. 2012) (quoting Matsushita, 475 U.S. at 587).
Whether Defendant Would Have Accepted
Payment to Any of the Three Corporate Entities
Plaintiff argues that a genuine issue of material fact remains as to whether the May 18,
2009 Notice properly identified the party to whom payment was to be made. Pl.’s Opp., at 4.
Specifically, Plaintiff attacks as “decidedly suspect” Defendant’s assertion that it would have
accepted a check made payable to any of the Three Corporate Entities. Id., at 4-5. Plaintiff
advances two arguments in support of this position, neither of which the Court finds persuasive.
In his first argument, Plaintiff concedes that, at some point during the lifetime of the Policy,
Defendant accepted checks made payable to any of the Three Corporate Entities. Pl.’s Supp. 56.1
Resp., at ¶ 16. However, according to Plaintiff, Defendant ceased this practice in July of 2008.
Id. Plaintiff’s evidence in support of this theory consists of two transcripts in which Defendant’s
counsel states that AIG and American General are two different entities. Pl.’s Opp., at 4-8; Lipsius
Supp. Decl., Exs. B and C.
The Court is at a loss to understand this argument. The fact that AIG and American General
are two different entities has absolutely no bearing on whether Defendant accepted checks
addressed to any of the Three Corporate Entities during the time the Policy was in force. Defendant
has produced three checks issued by Plaintiff, each one addressed to one of the Three Corporate
Entities. Sutton Supp. Decl., Ex. 15. The date on one of these checks is October 11, 2008, a fact
that flatly contradicts Plaintiff’s contention that Defendant stopped accepting checks addressed to
any of the Three Corporate Entities in July 2008. Id. Moreover, Sutton testified that Defendant
accepted checks made payable to any of the Three Corporate Entities during the entire time the
Policy was in force. Id., at ¶ 2. Plaintiff offers the bald conclusory assertion that Defendant ceased
this practice in July 2008, without a scintilla of evidence in support. See Ying Jing, 996 F. 2d at
532-33 (holding that a non-moving party cannot defeat a motion for summary judgment by relying
on conclusory statements).
Plaintiff’s second meritless argument is that Defendant implicitly admitted that it would
not have accepted a check made payable to the servicing agent, Lowinger. Pl.’s Opp., at 7. Thus,
under this theory, Defendant has admitted that it would not have accepted payment addressed to
any one of the four the entities listed on the May 18, 2009 Notice. Id., at 4-5. However, Defendant
has never claimed that it would have accepted a check payable to Lowinger. See generally, Def.’s
Reply and Opp. to Pl.’s Mot.; and Def.’s Supp. Mot. To the contrary, Defendant has argued that
the “[May 18, 2009 Notice] included [Lowinger’s] name and contact information only for the
express purpose of directing the Trust to contact” Lowinger if Plaintiff had any questions. Def.’s
Supp. Mot., at 7 (emphasis in original). This conclusion is obvious from the face of the May 18,
2009 Notice itself, which reads: “If you have any questions or need additional assistance, please
contact your servicing agent: Joseph Lowinger.”
May 18, 2009 Notice.
essentially concedes as much when he states that the May 18, 2009 Notice “speaks for itself.” Pl.’s
Supp. 56.1 Resp., at ¶ 12. The Court agrees.
The issue of material fact that remained unresolved from the July Order was whether
Defendant would have accepted a check addressed to any one of the Three Corporate Entities.
That was, and continues to be, Defendant’s argument, despite the Court’s inadvertent wording in
the July Order. See footnote 2, above. Because Defendant has offered convincing admissible
evidence in support of this position, which Plaintiff has failed to rebut, the Court finds that
Defendant would have accepted payment addressed to any of the Three Corporate Entities during
the relevant period.
Whether Plaintiff Previously Made Payments
In Response to Other Grace Period Notices
Defendant’s evidence demonstrates that Plaintiff received the June 17, 2008 Notice, and in
response, remitted payment to Defendant at the correct address. Sutton Supp. Decl., Ex. 17.
Plaintiff argues that his response to the June 17, 2008 Notice is immaterial, because Defendant
addressed the June 17, 2008 Notice to the insured, Rachel Meisels, and it addressed the May 18,
2009 Notice to an individual named Mayer Rosen. Pl.’s Opp., at 8-9. According to Plaintiff,
Rosen assisted Plaintiff with paying premiums. Id., at 9. In fact, Plaintiff insists, the only reason
Plaintiff successfully satisfied the June 17, 2008 Notice was due to Rosen’s assistance. Id. Each
of these arguments lacks merit.
First, Plaintiff’s assertion that Defendant addressed the May 18, 2009 Notice to Rosen is
incorrect; Defendant addressed it to the Trust, with the annotation “Attn Mr. Rosen.” Second, the
fact that Defendant mailed the grace period notices to two different addressees is irrelevant,
because there is no question that Plaintiff received both notices. Plaintiff clearly received the June
17, 2008 Notice, because he mailed it back to Defendant, see Sutton Supp. Decl., Ex. 17, and the
Court already has found that Plaintiff received the May 18, 2009 Notice. See June Order, at 10. 4
Finally, Plaintiff does not address the fact that New York law required Defendant to address the
June 17, 2008 Notice and the May 18, 2009 Notice to the insured and the Trust, respectively. As
noted by Defendant, in June 2008 New York law required that insurers send grace period notices
the insured. Def. Supp. Mot., at 3 (citing N.Y. Ins. Law § 3211). By May 2009, New York had
amended the statute to require that insurers send grace period notices to the policy owner. Id., at
3 n.2. The Court declines to hold Defendant’s compliance with the New York Insurance Law
Plaintiff’s misguided attempt to raise the issue again here is unavailing.
The contention that Plaintiff received assistance from Rosen in complying with the June
17, 2008 Notice similarly is misguided. Notably, the record once again controverts Plaintiff’s
argument. Rosen testified at his deposition that he simply delivered to Plaintiff any mail sent to
the Trust’s address. Wilson Sec. Supp. Decl., Ex. 1, at 63:11-15. Rosen had no knowledge of its
content, see id., or why he needed to deliver it to Plaintiff. Id., at 41:12-20. Furthermore, even if
the Court accepted as true that Rosen assisted Plaintiff, it would make no difference. The issue is
whether Plaintiff, with or without anyone’s assistance, complied with the June 17, 2008 Notice.
As it is abundantly clear that he did, Defendant’s motion for summary judgment is granted.
Zeligfeld v. Phoenix Life Insurance
The parties have spilled much ink arguing why Zeligfeld, a New York State Supreme Court
case, supports their respective positions. See Def.’s Supp. Mot., at 6-9; Pl’s Opp., at 1, 7-8; Def.’s
Reply, at 1-4. The Court declines to discuss Zeligfeld in any detail, beyond the following two
observations. First, Plaintiff’s citations to that court’s opinion denying the defendant insurance
company’s motion to dismiss are inapposite at best. Second, Defendant’s citations to the Zeligfeld
opinion denying the plaintiff insured’s motion for summary judgment are persuasive, but warrant
no further discussion here.
For the foregoing reasons, Defendant’s motion for summary judgment is granted and this
action is dismissed.
Dated: Brooklyn, New York
September 28, 2015
DORA L. IRIZARRY
United States District Judge
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