The United States Life Insurance Company in the City of New York, Plaintiff–Respondent, v. Lazar Grunhut, etc., et al., Defendants–Appellants. (2011)

Supreme Court, Appellate Division, First Department, New York.

The United States Life Insurance Company in the City of New York, Plaintiff–Respondent, v. Lazar Grunhut, etc., et al., Defendants–Appellants.

4821

Decided: April 19, 2011

Tom, J.P., Mazzarelli, Acosta, Renwick, Freedman, JJ.

Schindel, Framan, Lipsius, Gardner & Rabinovich LLP, New York (Ira S. Lipsius of counsel), for appellants. Edison, McDowell & Hetherington LLP, Houston, TX (David T. McDowell, of the Texas Bar, admitted pro hac vice, of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September 29, 2009, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment in defendants' favor dismissing the complaint.

By accepting premium payments for three months after commencing this action to rescind the insurance policies, and doing so apparently intentionally (to “protect” the insured pending a determination of the action), plaintiff waived its right to rescind the policies (Security Mut. Life Ins. Co. of N.Y. v Rodriguez, 65 AD3d 1, 7–11 [2009] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK

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