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Fidelity National Title Insurance Co. v. Regent Abstract Services

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 9, 2010

FIDELITY NATIONAL TITLE INSURANCE COMPANY, ET AL., PETITIONERS-APPELLANTS,
SHEILA FERRARI, ETC., ET AL., PETITIONERS-INTERVENORS-APPELLANTS,
v.
REGENT ABSTRACT SERVICES, LTD., ET AL., RESPONDENTS,
NEW YORK LIFE INSURANCE COMPANY, THIRD PARTY RESPONDENT.

Judgment and order (one paper), Supreme Court, New York County (Edward H. Lehner, J.), entered January 12, 2009, which granted respondent New York Life Insurance Company's cross motion to dismiss the petition brought pursuant to CPLR 5225 seeking an order directing respondent to release to petitioners the full value of the life insurance policy covering decedent's life, owing to Regent Abstract Services, LTD., unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, Nardelli, Renwick, Freedman, JJ.

110144/08

The IAS court correctly held that the subject insurance policy, which had lapsed for nonpayment of premiums, was not reinstated prior to decedent's death. The policy expressly required that the insured be alive at the time it received a past due premium in order for the policy to be reinstated. The policy lapsed on February 27, 2008. The insurer, New York Life Insurance Company, received the overdue premium payment on March 6, 2008; however, the decedent died in the interim, on March 3, 2008. Since a condition for reinstatement was not met, the policy could not be revived (see Scott v American Republic Life Ins. Co., 88 AD2d 949 [1982]).

Petitioners' and cross-petitioners' reliance on the "postal acceptance rule" for payment is misplaced because here the policy specifically required receipt while the insured was alive in order for the policy to be reinstated (compare Government Empls. Ins. Co. v Solaman, 157 Misc 2d 737 [1993]).

We have considered petitioners' and cross-petitioners' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100209

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