Lebovits v. PHL Variable Insurance Company

Filing 68

MEMORANDUM AND ORDER: The insured did not comply, representing that it could not pay without some assurance that the funds are not at risk. Letter from Ira. S. Lipsius (Dec. 23, 2016). The Court has already given that assurance. Accordingly, the case is dismissed with prejudice. Ordered by Judge Frederic Block on 1/13/2017. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BENZION LEBOVITS, as Trustee of
the Weberman Family Irrevocable Life
Insurance Trust,
Plaintiff,

MEMORANDUM AND ORDER
Case No. 12-CV-6397 (FB) (RML)

-againstPHL VARIABLE INSURANCE
COMPANY,
Defendant.
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Appearances:
For the Plaintiff:
IRA S. LIPSIUS, ESQ.
DAVID BENHAIM, ESQ.
Lipsius-Benhaim Law LLP
80-02 Kew Gardens Road, Suite 1030
Kew Gardens, NY 11415

For the Defendant:
PATRICK J. FEELEY, ESQ.
Dorsey & Whitney LLP
51 West 52nd Street
New York, NY 10019

BLOCK, Senior District Judge:
The Court previously held that the policy at issue in this case did not lapse, but
conditioned entry of a declaratory judgment to that effect on a tender of the premium
due. See Lebovits v. PHL Variable Ins. Co., ___ F. Supp. 3d ___, 2016 WL 4194120,
at *3 (E.D.N.Y. Aug. 9, 2016). Although the parties were able to agree on the amount
due—$2,128,542.48—the insured refused to pay it. At a court appearance, the
insured’s counsel stated that his client did not want to pay the premium until the time

to appeal had run because “the insurance company is going to take the $2 million, and
then we still won’t have coverage.” Tr. of Dec. 20, 2016, at 4.
As the Court explained, coverage would follow from entry of a judgment that
the policy had not lapsed. See id. (“You have coverage. Once you comply with my
order, you are covered.”). Were a higher authority to reverse that judgment, “[t]here
are all sort[s] of remedies the Court can impose.” Id. at 5. Most obviously, the circuit
court could condition its reversal on a return of the premium with interest. The Court
then directed the insured to tender payment by December 22nd, clearly warning that
failure to do so would result in dismissal of that case. Id. at 4 (“You are going to pay
it up forthwith. Otherwise you are gone.”).
The insured did not comply, representing that it could not pay “without some
assurance that the funds are not at risk.” Letter from Ira. S. Lipsius (Dec. 23, 2016).
The Court has already given that assurance. Accordingly, the case is dismissed with
prejudice.
SO ORDERED.

_/S/ Frederic Block_____
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
January 13, 2017
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