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

Joseph W. McGARR, as Executor of the Estate of Kathleen M. Mooney, Plaintiff-Appellant, v. The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, et al., Defendants-Respondents.

Decided: June 23, 2005

BUCKLEY, P.J., TOM, MAZZARELLI, ELLERIN, GONZALEZ, JJ. Hodgson Russ LLP, Buffalo (Kevin D. Szczepanski of counsel), for appellant. Bleakley Platt & Schmidt, LLP, White Plains (Robert D. Meade of counsel), for The Guardian Life Insurance Company of America, respondent. Traub Eglin Lieberman Straus LLP, Hawthorne (Christopher Russo of counsel), for James V. Downing and Collins & Associates, respondents.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered October 22, 2003, which granted defendant Guardian Life Insurance Company's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.   Order and judgment (one paper), same court and Justice, entered June 16, 2004, which granted the summary judgment motion of defendants James V. Downing and Collins & Associates, denied plaintiff's cross motion to strike those defendants' answer pursuant to CPLR 3126, declared in defendants' favor and otherwise dismissed the complaint as against defendant movants, unanimously modified, on the law, the facts and in the exercise of discretion, to grant the cross motion insofar as to deny so much of the summary judgment motion as is made on Downing's behalf, and accordingly to vacate the dismissal and award of declaratory relief in Downing's favor, without prejudice, and otherwise affirmed, without costs.

In 1994, Richard C. Mooney purchased a Guardian life insurance policy through defendant Downing, who was then employed by defendant Collins & Associates.   The policy lapsed for nonpayment of premiums.   In September 1995, Mooney applied to reinstate the policy and to reduce the amount of coverage from $800,000 to $200,000.

 Plaintiff's fact-based argument that defendants failed to notify the insured of the $800,000 policy's lapse in accordance with the requirements of Insurance Law § 3211(a)(1) is improperly raised for the first time on appeal, and we decline to consider it (see e.g. City of New York v. Stack, 178 A.D.2d 355, 577 N.Y.S.2d 406 [1991], lv. denied 80 N.Y.2d 753, 587 N.Y.S.2d 905, 600 N.E.2d 632 [1992] ).   Were we to reach this issue, we would find that, since premiums were paid on a monthly basis, § 3211(a)(1) does not apply (see Insurance Law § 3211[f][2];  Elston v. Allstate Life Ins. Co. of New York, 274 A.D.2d 938, 712 N.Y.S.2d 185 [2000] ).

 Contrary to plaintiff's claim, there are no triable issues as to whether the $800,000 policy lapsed;  hence, summary judgment was properly granted to Guardian and Collins on this issue (see e.g. Brecher v. Mut. Life Ins. Co., 120 A.D.2d 423, 501 N.Y.S.2d 879 [1986] ).   Defendants were not estopped from asserting the policy's lapse;  the policy clearly states that if premium payments are not made within a 31-day grace period, the policy will lapse (see e.g. Great Neck Saw Mfrs., Inc. v. Manhattan Life Ins. Co., 163 A.D.2d 273, 274-275, 557 N.Y.S.2d 142 [1990], lv. denied 76 N.Y.2d 711, 563 N.Y.S.2d 767, 565 N.E.2d 516 [1990] ).

 In his reinstatement application, Mooney stated that he had had no medical treatment within the past five years, when in fact he had had medical treatment within the preceding month.   Because of this material misrepresentation, Guardian was not required to pay out on the $200,000 policy (see e.g. Process Plants Corp. v. Beneficial Natl. Life Ins. Co., 53 A.D.2d 214, 385 N.Y.S.2d 308 [1976], affd. 42 N.Y.2d 928, 397 N.Y.S.2d 1007, 366 N.E.2d 1361 [1977] ).

 Viewing the facts in the light most favorable to plaintiff, the $800,000 policy obtained by Downing was not what Mooney had requested-Mooney purportedly requested a $1 million policy with premiums lower than the ones he had been paying.   Nevertheless, plaintiff's cause of action for negligence was properly dismissed (see Busker on the Roof Ltd. Partnership v. Warrington, 283 A.D.2d 376, 725 N.Y.S.2d 45 [2001] ).   The Guardian policy clearly sets forth the coverage amount and the annual premiums, and Mooney is presumed to have read and understood his policy (id. at 377, 725 N.Y.S.2d 45).   If the policy was not what he wanted, he should have exercised his right to cancel it within 10 days of receipt.

 Plaintiff's cause of action for “detrimental reliance” was also properly dismissed, since there was no special relationship between Mooney and defendants (see Murphy v. Kuhn, 90 N.Y.2d 266, 660 N.Y.S.2d 371, 682 N.E.2d 972 [1997] ).

Mooney's widow commenced the instant action on August 27, 1997 and died three days later.   In May 1998, plaintiff, the executor of the widow's estate, served document requests and a deposition notice on defendants.   However, plaintiff took no further steps to prosecute this action until 2001.   During that period, Downing left the life insurance industry.   By the time plaintiff tried to depose Downing, he could not be located.

 Plaintiff's cross motion to strike Downing's and Collins' answer was properly denied as to Collins.   Since Downing left Collins' employ years before November 2001, Collins should not be penalized for Downing's failure to appear (see e.g. Moriates v. Powertest Petroleum Co., 114 A.D.2d 888, 890, 495 N.Y.S.2d 62 [1985], lv. dismissed 67 N.Y.2d 603, 499 N.Y.S.2d 1029, 490 N.E.2d 864 [1986] ), especially because Collins was not in default of any of its own disclosure obligations (see Magee v. City of New York, 242 A.D.2d 239, 662 N.Y.S.2d 18 [1997] ).

 While the penalty of striking Downing's answer may be too harsh (see Heyward v. Benyarko, 82 A.D.2d 751, 440 N.Y.S.2d 21 [1981];  but see Montgomery v. Colorado, 179 A.D.2d 401, 402, 577 N.Y.S.2d 851 [1992] ), in light of Downing's failure to meet his obligation to remain in contact with his attorney an award of summary relief to him would at this juncture be inappropriate.   Indeed, since defense counsel was unable to locate Downing, Downing could not have authorized counsel to make a summary judgment motion on his behalf.   Under the circumstances, an appropriate sanction is to deny the summary judgment motion as to Downing (see e.g. Crawford v. Toyota Motor Credit Corp., 283 A.D.2d 184, 724 N.Y.S.2d 595 [2001] ).   However, the denial is without prejudice;  if Downing reappears in the future, he may make a summary judgment motion at that point.

We have considered plaintiff's remaining arguments and find them unavailing.