| Katchalova v Perchikov |
| 2007 NY Slip Op 06640 [43 AD3d 873] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Elizabeth Katchalova, Appellant, v Eugene Perchikov etal., Defendants, and Union Central Life Insurance Company et al.,Respondents. |
—[*1] McElroy, Deutsch, Mulvaney and Carpenter, LLP, New York, N.Y. (Steven P. Del Mauro ofcounsel), for respondents Union Central Life Insurance Company and John Hancock LifeInsurance Company. Levi Lubarsky & Feigenbaum LLP, New York, N.Y. (Andrea Likwornik Weiss and MaryAnn Doyle of counsel), for respondents Chase Insurance Agency, Inc., and John M.Clancy.
In an action, inter alia, to recover damages for wrongful death and pain and suffering, theplaintiff appeals (1) from an order of the Supreme Court, Kings County (Jackson, J.), datedMarch 15, 2006, which, among other things, granted the motion of the defendants Union CentralLife Insurance Company and John Hancock Life Insurance Company, and the separate motion ofthe defendants Chase Insurance Agency, Inc., and John M. Clancy, for summary judgmentdismissing the causes of action alleging wrongful death and pain and suffering asserted againstthem, respectively, (2) from an order of the same court dated March 31, 2006, which denied asacademic her motion for an extension of time to complete discovery and to file a note of issue,and (3) from so much of an order of the same court dated October 27, 2006, as (a) uponreargument, in effect, adhered to stated portions of the original determination in the order datedMarch 15, 2006, and (b) upon renewal and reargument of her motion for an extension of time tocomplete discovery and to [*2]file a note of issue, granted themotion for an extension of time to complete discovery and to file a note of issue only to theextent of directing all parties to appear for a preliminary conference on December 6, 2006.
Ordered that the appeals from the orders dated March 15, 2006 and March 31, 2006 aredismissed, as those orders were superseded by the order dated October 27, 2006; and it is further,
Ordered that the appeal from so much of the order dated October 27, 2006, as, upon renewaland reargument, granted the plaintiff's motion for an extension of time to complete discovery andto file a note of issue only to the extent of directing all parties to appear for a preliminaryconference on December 6, 2006, is dismissed as academic; and it is further,
Ordered that the order dated October 27, 2006 is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the respondents.
The plaintiff, as personal representative of and administratrix of the estate of LaryssaVasserman, also known as Larysa Vasserman (hereinafter the decedent), commenced this action,inter alia, to recover damages for wrongful death and pain and suffering under a theory that thedefendant insurance companies and insurance agents negligently issued life insurance policies tothe decedent and thereby helped to bring about her death. The complaint alleged that thedefendant Eugene Perchikov became intimate with the decedent and "importune[d]" her to applyfor large amounts of life insurance naming him as the beneficiary. Perchikov accompanied thedecedent to meet with various insurance agents, including the defendants Chase InsuranceAgency, Inc. (hereinafter Chase), and its employee John M. Clancy, agents for the defendantJohn Hancock Life Insurance Company (hereinafter John Hancock), and served as her translatorduring the various application processes for life insurance policies. During the applicationprocesses, the decedent misrepresented her income, her occupation, and her relationship withPerchikov. After procuring one million dollar life insurance policies from the defendants UnionCentral Life Insurance Company (hereinafter Union Central), John Hancock, and MetropolitanLife Insurance Company, Perchikov allegedly murdered the decedent in order to obtain theproceeds of the life insurance policies.
Union Central and John Hancock moved to dismiss the wrongful death and pain andsuffering causes of action asserted against them premised on their alleged negligent issuance ofthe life insurance policies on the ground, inter alia, that New York does not recognize such atheory of recovery. Chase and Clancy separately moved to dismiss the wrongful death and painand suffering causes of action asserted against them. The court granted the motions. We affirm.
The wrongful death and pain and suffering causes of action, premised upon the allegednegligent issuance of life insurance policies, fail to state a cause of action. New York does notpresently recognize such a theory of recovery based on the negligent issuance of an insurancepolicy (see Katchalova v Borger, 7Misc 3d 966 [2005]). Indeed, the circumstances of this case do not even fall under any of thescenarios pursuant to which other jurisdictions have recognized such a theory of recovery (seeKatchalova v Borger, supra; Bajwa v Metropolitan Life Ins. Co., 208 Ill 2d 414, 804 NE2d519 [2004]; Bacon v Federal Kemper Life Assur. Co., 400 Mass 850, 512 NE2d 941[1987]; Life Ins. Co. of Georgia v Lopez, 443 So [*3]2d947, 948 [Fla 1983]; Burton v John Hancock Mut. Life Ins. Co., 164 Ga App 592, 298SE2d 575 [1982]; Ramey v Carolina Life Ins. Co., 244 SC 16, 135 SE2d 362 [1964];Liberty Natl. Life Ins. Co. v Weldon, 267 Ala 171, 100 So 2d 696 [1957]). Thus, theplaintiff seeks to recover pursuant to a theory of negligent issuance of an insurance policy undercircumstances in which no other court has recognized such a claim. We decline to recognize sucha claim in this case.
Contrary to the plaintiff's contention, further discovery is not required. Even taking the factsas alleged by the plaintiff in her complaint to be true, and providing her with every favorableinference which reasonably may be drawn therefrom (see Leon v Martinez, 84 NY2d 83,87-88 [1994]), the subject claims cannot be sustained.
The plaintiff's further contention that the motions for summary judgment should have beendenied because the motion papers failed to include copies of the answer (see CPLR 3212[b]) is improperly raised for the first time in her reply brief; hence, we decline to consider it (see Culpepper v Allstate Ins. Co., 31AD3d 490 [2006]; Williams v Cityof White Plains, 6 AD3d 609 [2004]; Patino v Lockformer Co., 303 AD2d 731,733 [2003]; Panzella v Shop Rite Supermarkets, 238 AD2d 490 [1997]).
Pursuant to an order dated December 6, 2006, the Supreme Court extended the time bywhich discovery must be completed until August 31, 2007, and the time to file a note of issuewas extended to September 28, 2007. In light of this order, the plaintiff correctly concedes thatthe portion of her appeal which relates to the court's determination of her motion for an extensionof time to complete discovery and to file a note of issue has been rendered academic.
The parties' remaining contentions either are without merit or need not be reached in view ofthe foregoing. Mastro, J.P., Dillon, Covello and Dickerson, JJ., concur.