Preview
FILED: NEW YORK COUNTY CLERK 06/03/2019 02:42 PM INDEX NO. 652830/2017
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 06/05/2019
NYSCEF DOC. NO. 80 REC
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ROCHELLE MENCHE and PINCHUS ! Index No. 652830/2017
MENCHE as trustees of the SOLOMON
MENCHE ILIT,
-
Plaintiffs,
NOTICE OF APPEAL
-against-
THE UNITED STATES LIFE INSURANCE
CO. IN THE CITY OF NEW YORK.
- Defendants.
PLEASE TAKE NOTICE, that Plaintiffs, ROCHELLE MENCHE
MENCHE as trustees of the SOLOMON MENCHE ILIT, hereby appeal
Division, First Department, from each and every part of the Order of the Hon.
Plaintiffs'
dated April 18, 2019 and entered on April 26, 2019, dcñyiñg motio
judgment (motion sequence 1)
(attached as Exhibit A) and granting Defêñdant
Fxhibit
r-ray judgmcñt (metion sequeñcc 2)
(attached as B). Order with
were served on May 15, 2019.
Dated: Kew Gardens, New York
June 3, 2019
LIPSIUS-BENHAIM LAW, LLP
1 of 65 Attorneys for Plaintiffs
FILED: NEW YORK COUNTY CLERK 06/03/2019 02:42 PM INDEX
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NYSCEF DOC.
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80 RECEIVED
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EXHIBIT A
2
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NYSCEF DOC.
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NO. 80
80 RECEIVED
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NYSCEF: 06/05/2019
05/@S/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ROCHELLE MENCHE and PINCHUS Index No. 652830/2017
MENCHE as trustees of the SOLOMON
MENCHE ILIT,
Plaintiffs, NOTICE OF ENTRY
-against-
THE UNITED STATES LIFE INSURANCE
CO. IN THE CITY OF NEW YORK,
Defendant.
PLEASE TAKE NOTICE that the attached is a true and correct copy of a decision and
order duly made on April 18, 2019, and entered on April 26, 2019.
Dated: New York, NY s/ Steven M. Lucks
May 15, 2019 FISHKIN LUCKS LLP
Steven M. Lucks
S. Aaron Loterstein
277 Broadway, Suite 408
New York, NY 10007
(646) 755-9200
slucks@fishkinlucks.com
aloterstein@fishkinlucks.com
-and-
McDOWELL HETHERINGTON LLP
David T. McDowell (to be admitted pro hac vice)
Kendall J. Burr (to be admitted pro hac vice)
First City Tower
1001 Fannin Street, Suite 2700
Houston, TX 77002
(713) 337-5580
david.medowell@mhilp.com
kendall.burr@mhllp.com
Attorneys for Deféñdañt/Counterclaim Plaintiff The
United States Life Insurance Company in the City of
New York
00063224.1
3E of
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05/09/2019
To: LIPSIUS-BENHAIM LAW, LLP
Ira S. Lipsius
David BenHaim
225 Broadway, 24th Floor
80-02 Kew Gardens Road, Suite 1030
Kew Gardens, NY 11415
iral@lipsiuslaw.com
dbenhaim@1ipsiuslaw.com
(212) 981-8440
Attorneys for Plaintiffs
00063224.1
4
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88 RECEIVED NYSCEF::
RECEIVED-NYSCEF 06/05/2019
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
HON. ROBERTR. REED
PRESENT: PART y3
Index Number 652830/2017
3g3g go.
ROCHELLE MENCHE AND
M
PINCHUS
vs N
UNITED STATES LIFE
MOTION SEQ. No.
Sequence Number 001
- SUMMARY JUDGMENT
The numbered1 to toffer '
following papers, ____ , were read on this motion
Motice of Motion/Orderto Show Cause - Affidavits- E.xhibits 1No(s).
Answering Affidavits- Exhibits |No(s).
Replying Affidavits |No(s).
Upon the foregoing papers, itis onfered that this motion is
decided in accordance with thisCourt's decision on the record. Movant is directed to obtain a copy of
ordering"
the transcript of the proceedings for "so within 14 days of entry of thisorder.
E a.
Dated:
, J.S.C.
1. CHECK ONE: . CASE DISPOSED O NON-FINAL DISPOSITION
2. CHECK AS APPROPRIATE: ..- . ... .MOTION IS: GRANTED DENIED O GRANTED IN PART D OTHER
3. CHECK IF APPROPRIATE: ................... .......... SETTLE ORDER O SUBMIT ORDER
DO NOT POST O FIDUCIARY APPOINTMENT O REFERENCE
5 of 65
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IWyg@QF
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IE©ETXWID NYSCEF:
If$16 P:: 06/05/2019
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Q)ll93
1
MAY 14 2019
1 SUPREME COURT OF THE STATE OF NEW ORK
NEW YORK COUNTY : CIVIL TERM : PAR 3 (y4g
2 --------------------------------- 7"CIWA
ROCHELLE MENCHE and PINCHUS MENCHE, as
3 Trustee of the SOLOMON MENCHE ILIT
4 Plaintiff
- against -
Ind. No.
5 652830/17
THE UNITED STATES LIFE INSURANCE CO. IN THE
6 CITY OF NEW YORK
Defendant
7 --------------------------------------------X
60 Centre Street
8 New York, New York
April 18, 2019
9
B E F O R E :
10
11 HONORABLE ROBERT R. REED
12 Justice
13 A P P E A R A N C E S :
14 LIPSIUS-BENHAIM LAW LLP
Attorneys for Plaintiff
15 80-02 Kew Gardens Road, Suite 1030
Kew Gardens, NY 11415
16 BY: ALEXANDER J. SPERBER, ESQ.
17 McDOWELL HETHERINGTON LLP
Attorneys for Defendants
18 1001 Fannin Street
Houston, TX 77002
19 BY: KENDALL J. BURR, ESQ.
.
20 FISHKIN LUCKS
Attorneys for Defendant
21 277 Broadway
New York, NY 10007
22 AARON LOTERSTEIN, ESQ.
23
Kathy Y. Jones
24 Official Court Reporter
25
KATHY Y. JONES, SCR
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Proceedings
1 THE COURT: All right. Appearances.
2 MR. SPERBER: Good morning, your Honor.
3 Alexander Sperber, Lipsius-Benhaim Law for the
4 plaintiffs.
5 MR. BURR: Good morning, your Honor.
6 Kendall Burr of McDowell Hetherington LLP for
7 defendant.
8 With me is Aaron Loterstein from Fishkin Lucks
9 also representing defendants.
10 THE COURT: All right.
11 Go ahead, counsel.
12 MR. SPERBER: Yes.
13 Good morning, your Honor.
14 May it please the Court, this action was
15 commenced because defendant U.S. Life Insurance Company
16 an AIG Company, AIG Insurance Company, improperly
17 attempted to cancel two life insurance policies in direct
18 violation of a court order.
19 In 2008, AIG issued two policies of life
.
20 insurance on the life of Solomon Menche.
21 In 2010 AIG commenced an action attempting to
22 rescind those policies on the basis of a purported
23 misrepresentation on the policy application. As a result
24 of that action, the Trust which is the policy was forced
25 to purchase replacement insurance on Mr. Menche's life
KATHY Y. JONES, SCR
7
12) off
of 2E1
65
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NO. 652830/2017
652830/2017
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 80
88 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/05/2019
05/08/2019
3
Proceedings
1 from Guardian Life Insurance at great expense.
2 In 2013, Judge Mills ruled against AIG that the
3 policies cannot be terminated.
4 Two years later in 2015, the Trust received
5 notices from AIG that unless the Trust paid back premiums
6 for the preceding years while the policy had been in
7 litigation while AIG was attempting to avoid policies,
8 they would again void the policies for lack of payment of
9 premiums.
10 The Trust immediately brought an order to show
11 cause before Judge Mills arguing that AIG was not
12 entitled to back premiums for two reasons. First of all,
13 that AIG was not entitled to premiums for insurance it
14 never provided. Namely, that during the previous three
15 years that because there was no peace of mind given by
16 the insurance.
17 The whole point of insurance is that the policy
18 holder has peace of mind as security that in the event of
19 a death they would be covered. Since they were not
20 provided the bargained-for coverage, they were not
21 entitled to premium.
22 And second of all, any claim of premium could be
23 offset by the Trust's owned damages in obtaining
24 replacement insurance.
25 Judge Mills in August 2015 ordered that the
KATHY Y. JONES, SCR
8 of 65
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1 Trust was to pay premium going forward and that the issue
2 of back premium would be reserved for a later date but
3 that the status quo be maintained and that all the Trust
4 had to do was keep paying ongoing forward premium.
5 The Trust did just that. It has timely provided
. 6 premium payments to AIG.
7 AIG has refused, however, to accept those
8 premium payments and to this day still refuses to accept
9 them.
10 The Court dismissed the remainder of -- Judge
11 Mills dismissed the remainder of that action in
12 February 2016 and AIG has since sent a letter to the
13 Trust refusing to credit the Trust payments in direct
14 violation of Judge Mill's order and stating that the
15 policy is deemed terminated for failure to pay premiums.
16 As a result, we brought this action seeking a
17 declaration that the policy remains in full force and
18 effect as the Trust has fully complied with Judge Mill's
19 direction and further that no back premiums are owed for
.
20 premium, for again, for those same exact reasons that AIG
21 failed to provide the bargained-for coverage during that
22 time period and again that any amount AIG claims are owed
23 are to be offset by the Trust's own damages obtaining
24 alternative insurance. Those damages exceed $2 million.
25 THE COURT: I have a number of questions.
KATHY Y. JONES, SCR
1212aoff
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Proceedings
1 One, Judge Mills ruled that the policy not be
2 rescinded. She didn't rule that it could not be
3 terminated.
4 The issue of whether or not it could be
5 terminated based upon the several years of non-payment
6 was left to be resolved and never was resolved.
7 I'm also, I guess also concerned that the
8 previous matter was U.S. Life seeking a declaration of
9 recision. That kind of presupposes that the issue had
10 not been resolved, that they were putting it before the
11 Court to have the Court make a determination.
12 So, the fact that the Trust decided to spend a
13 couple of million dollars to get a new policy really
14 wasn't its choice as opposed to insisting on paying what
15 was 100 something thousand dollars that was outstanding
16 and in due payments would seem to either -- if of
part
17 Judge Mill's declaration or determination on your TRO,
18 preliminary injunction motion, it seems like the thing
19 you want to do is at least let us pay in court the amount
.
20 that is owed for the back issue and then at the end of
21 the day, you know, the insurance company would be in a
22 position of saying, well, the Judge decided to rescind
23 this matter, at the end decided to terminate it. We've
24 done everything we could to keep the policy in place.
25 But simply not paying the policy for a period of years
KATHY Y. JONES, SCR
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1 and saying you want coverage because you paid another
2 entity for insurance, I don't know how that adds up
3 legally.
4 MR. SPERBER: Just to address those issue, your
5 Honor.
6 First of all, the Trust brought the order to
7 show cause and fully complied with Judge Mill's direction
8 to pay premiums on a going-forward basis.
9 THE COURT: Going forward is fine. It's the past
10 issue that was not addressed by the prior decision. And
11 when it ultimately was dismissed, this was an issue that
12 was left hanging and this was an issue that remained a
13 contention between the parties.
14 You have to pay monthly or regular payments to
15 keep insurance going. If you don't do it, then the
16 policy lapses unless you have some court order saying
17 that the policy doesn't and you didn't have a court order
18 saying the policy didn't lapse. You had a decision in
19 which the Judge said, well, we'll pump this for later.
20 MR. SPERBER: Correct, your Honor. Again the
21 Trust did pay or at least attempted to pay all the premiums
22 at Judge Mill's direction going forward and Judge Mills,
23 her determination was that the issue of back premium would
24 be held with the status quo basically being maintained,
25 meaning we resolve the issue at some point in time when we
KATHY Y. JONES, SCR
M
11 affE
of 2BB
65
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Preview
FILED: NEW YORK COUNTY CLERK 06/03/2019 02:42 PM INDEX NO. 652830/2017 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 06/05/2019 NYSCEF DOC. NO. 80 REC SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ROCHELLE MENCHE and PINCHUS ! Index No. 652830/2017 MENCHE as trustees of the SOLOMON MENCHE ILIT, - Plaintiffs, NOTICE OF APPEAL -against- THE UNITED STATES LIFE INSURANCE CO. IN THE CITY OF NEW YORK. - Defendants. PLEASE TAKE NOTICE, that Plaintiffs, ROCHELLE MENCHE MENCHE as trustees of the SOLOMON MENCHE ILIT, hereby appeal Division, First Department, from each and every part of the Order of the Hon. Plaintiffs' dated April 18, 2019 and entered on April 26, 2019, dcñyiñg motio judgment (motion sequence 1) (attached as Exhibit A) and granting Defêñdant Fxhibit r-ray judgmcñt (metion sequeñcc 2) (attached as B). Order with were served on May 15, 2019. Dated: Kew Gardens, New York June 3, 2019 LIPSIUS-BENHAIM LAW, LLP 1 of 65 Attorneys for Plaintiffs FILED: NEW YORK COUNTY CLERK 06/03/2019 02:42 PM INDEX INDEX NO. NO. 652830/2017 652830/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 80 80 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/05/2019 06/03/2019 EXHIBIT A 2 5 of of 64 65 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 06/03/2019 05/15/2019 02:42 03:34 PM PN1 INDEX INDEX NO. NO . 652830/2017 6 5 2 8 3 0 / 2 0 17 NYSCEF NYSCEF DOC. DOC. NO. NO. 80 80 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/05/2019 05/@S/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ROCHELLE MENCHE and PINCHUS Index No. 652830/2017 MENCHE as trustees of the SOLOMON MENCHE ILIT, Plaintiffs, NOTICE OF ENTRY -against- THE UNITED STATES LIFE INSURANCE CO. IN THE CITY OF NEW YORK, Defendant. PLEASE TAKE NOTICE that the attached is a true and correct copy of a decision and order duly made on April 18, 2019, and entered on April 26, 2019. Dated: New York, NY s/ Steven M. Lucks May 15, 2019 FISHKIN LUCKS LLP Steven M. Lucks S. Aaron Loterstein 277 Broadway, Suite 408 New York, NY 10007 (646) 755-9200 slucks@fishkinlucks.com aloterstein@fishkinlucks.com -and- McDOWELL HETHERINGTON LLP David T. McDowell (to be admitted pro hac vice) Kendall J. Burr (to be admitted pro hac vice) First City Tower 1001 Fannin Street, Suite 2700 Houston, TX 77002 (713) 337-5580 david.medowell@mhilp.com kendall.burr@mhllp.com Attorneys for Deféñdañt/Counterclaim Plaintiff The United States Life Insurance Company in the City of New York 00063224.1 3E of of 65 29 FILED:: IFILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 06/03/2019 05/15/2019 02:42 03:34 PM PN1 INDEX INDEX NO. NO. 652830/2017 652830/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 80 80 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/05/2019 05/09/2019 To: LIPSIUS-BENHAIM LAW, LLP Ira S. Lipsius David BenHaim 225 Broadway, 24th Floor 80-02 Kew Gardens Road, Suite 1030 Kew Gardens, NY 11415 iral@lipsiuslaw.com dbenhaim@1ipsiuslaw.com (212) 981-8440 Attorneys for Plaintiffs 00063224.1 4 2 of of 65 29 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 06/03/2019 05/25/2019 02:42 33:3 4 PM RM) n @n INDEX NO. wôT 652830/2017 $5 2 8 T0/200 NYSCEF NYSCEF DOC. DOC. NO. NO. 80 88 RECEIVED NYSCEF:: RECEIVED-NYSCEF 06/05/2019 05 /IBB /2 0 19 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. ROBERTR. REED PRESENT: PART y3 Index Number 652830/2017 3g3g go. ROCHELLE MENCHE AND M PINCHUS vs N UNITED STATES LIFE MOTION SEQ. No. Sequence Number 001 - SUMMARY JUDGMENT The numbered1 to toffer ' following papers, ____ , were read on this motion Motice of Motion/Orderto Show Cause - Affidavits- E.xhibits 1No(s). Answering Affidavits- Exhibits |No(s). Replying Affidavits |No(s). Upon the foregoing papers, itis onfered that this motion is decided in accordance with thisCourt's decision on the record. Movant is directed to obtain a copy of ordering" the transcript of the proceedings for "so within 14 days of entry of thisorder. E a. Dated: , J.S.C. 1. CHECK ONE: . CASE DISPOSED O NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE: ..- . ... .MOTION IS: GRANTED DENIED O GRANTED IN PART D OTHER 3. CHECK IF APPROPRIATE: ................... .......... SETTLE ORDER O SUBMIT ORDER DO NOT POST O FIDUCIARY APPOINTMENT O REFERENCE 5 of 65 FILED: IFILED: NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 06/03/2019 05/15/2019 02:42 03:34 PM PM| MMti INDEX NO. 652830/201740 IWyg@QF NYSCEF IliC.. DOC. NO. 1 ..80 RECEIVED IE©ETXWID NYSCEF: If$16 P:: 06/05/2019 Q)f5 /0131 / Q)ll93 1 MAY 14 2019 1 SUPREME COURT OF THE STATE OF NEW ORK NEW YORK COUNTY : CIVIL TERM : PAR 3 (y4g 2 --------------------------------- 7"CIWA ROCHELLE MENCHE and PINCHUS MENCHE, as 3 Trustee of the SOLOMON MENCHE ILIT 4 Plaintiff - against - Ind. No. 5 652830/17 THE UNITED STATES LIFE INSURANCE CO. IN THE 6 CITY OF NEW YORK Defendant 7 --------------------------------------------X 60 Centre Street 8 New York, New York April 18, 2019 9 B E F O R E : 10 11 HONORABLE ROBERT R. REED 12 Justice 13 A P P E A R A N C E S : 14 LIPSIUS-BENHAIM LAW LLP Attorneys for Plaintiff 15 80-02 Kew Gardens Road, Suite 1030 Kew Gardens, NY 11415 16 BY: ALEXANDER J. SPERBER, ESQ. 17 McDOWELL HETHERINGTON LLP Attorneys for Defendants 18 1001 Fannin Street Houston, TX 77002 19 BY: KENDALL J. BURR, ESQ. . 20 FISHKIN LUCKS Attorneys for Defendant 21 277 Broadway New York, NY 10007 22 AARON LOTERSTEIN, ESQ. 23 Kathy Y. Jones 24 Official Court Reporter 25 KATHY Y. JONES, SCR 6 of 65 FILED: IFILED: NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 06/03/2019 05/15/2019 02:42 03:34 PM PM| INDEX INDEX NO. NO. 652830/2017 652830/2017 NYSCEF NYSCEF DOC. DOC, NO. N0, 80 SlB RECEIVED RECEIVED NYSCEF: lasCEF: 06/05/2019 05/M/2019 2 Proceedings 1 THE COURT: All right. Appearances. 2 MR. SPERBER: Good morning, your Honor. 3 Alexander Sperber, Lipsius-Benhaim Law for the 4 plaintiffs. 5 MR. BURR: Good morning, your Honor. 6 Kendall Burr of McDowell Hetherington LLP for 7 defendant. 8 With me is Aaron Loterstein from Fishkin Lucks 9 also representing defendants. 10 THE COURT: All right. 11 Go ahead, counsel. 12 MR. SPERBER: Yes. 13 Good morning, your Honor. 14 May it please the Court, this action was 15 commenced because defendant U.S. Life Insurance Company 16 an AIG Company, AIG Insurance Company, improperly 17 attempted to cancel two life insurance policies in direct 18 violation of a court order. 19 In 2008, AIG issued two policies of life . 20 insurance on the life of Solomon Menche. 21 In 2010 AIG commenced an action attempting to 22 rescind those policies on the basis of a purported 23 misrepresentation on the policy application. As a result 24 of that action, the Trust which is the policy was forced 25 to purchase replacement insurance on Mr. Menche's life KATHY Y. JONES, SCR 7 12) off of 2E1 65 FILED: IFILED: NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 06/03/2019 05/15/2019 02:42 03:34 PM PM| INDEX INDEX NO. NO. 652830/2017 652830/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 80 88 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/05/2019 05/08/2019 3 Proceedings 1 from Guardian Life Insurance at great expense. 2 In 2013, Judge Mills ruled against AIG that the 3 policies cannot be terminated. 4 Two years later in 2015, the Trust received 5 notices from AIG that unless the Trust paid back premiums 6 for the preceding years while the policy had been in 7 litigation while AIG was attempting to avoid policies, 8 they would again void the policies for lack of payment of 9 premiums. 10 The Trust immediately brought an order to show 11 cause before Judge Mills arguing that AIG was not 12 entitled to back premiums for two reasons. First of all, 13 that AIG was not entitled to premiums for insurance it 14 never provided. Namely, that during the previous three 15 years that because there was no peace of mind given by 16 the insurance. 17 The whole point of insurance is that the policy 18 holder has peace of mind as security that in the event of 19 a death they would be covered. Since they were not 20 provided the bargained-for coverage, they were not 21 entitled to premium. 22 And second of all, any claim of premium could be 23 offset by the Trust's owned damages in obtaining 24 replacement insurance. 25 Judge Mills in August 2015 ordered that the KATHY Y. JONES, SCR 8 of 65 FILED: IFILED: NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 06/03/2019 05/15/2019 02:42 03:34 PM PM| INDEX INDEX NO. NO. 652830/2017 652830/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 80 88 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/05/2019 05/08/2019 4 Proceedings 1 Trust was to pay premium going forward and that the issue 2 of back premium would be reserved for a later date but 3 that the status quo be maintained and that all the Trust 4 had to do was keep paying ongoing forward premium. 5 The Trust did just that. It has timely provided . 6 premium payments to AIG. 7 AIG has refused, however, to accept those 8 premium payments and to this day still refuses to accept 9 them. 10 The Court dismissed the remainder of -- Judge 11 Mills dismissed the remainder of that action in 12 February 2016 and AIG has since sent a letter to the 13 Trust refusing to credit the Trust payments in direct 14 violation of Judge Mill's order and stating that the 15 policy is deemed terminated for failure to pay premiums. 16 As a result, we brought this action seeking a 17 declaration that the policy remains in full force and 18 effect as the Trust has fully complied with Judge Mill's 19 direction and further that no back premiums are owed for . 20 premium, for again, for those same exact reasons that AIG 21 failed to provide the bargained-for coverage during that 22 time period and again that any amount AIG claims are owed 23 are to be offset by the Trust's own damages obtaining 24 alternative insurance. Those damages exceed $2 million. 25 THE COURT: I have a number of questions. KATHY Y. JONES, SCR 1212aoff 9 of 2EB1 65 FILED: IFILED: NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 06/03/2019 05/15/2019 02:42 03:34 PM PM| INDEX INDEX NO. NO. 652830/2017 652830/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 80 BB RECEIVED F CErWED NYSCEF: tWSCEF: 06/05/2019 05/E3/2019 5 Proceedings 1 One, Judge Mills ruled that the policy not be 2 rescinded. She didn't rule that it could not be 3 terminated. 4 The issue of whether or not it could be 5 terminated based upon the several years of non-payment 6 was left to be resolved and never was resolved. 7 I'm also, I guess also concerned that the 8 previous matter was U.S. Life seeking a declaration of 9 recision. That kind of presupposes that the issue had 10 not been resolved, that they were putting it before the 11 Court to have the Court make a determination. 12 So, the fact that the Trust decided to spend a 13 couple of million dollars to get a new policy really 14 wasn't its choice as opposed to insisting on paying what 15 was 100 something thousand dollars that was outstanding 16 and in due payments would seem to either -- if of part 17 Judge Mill's declaration or determination on your TRO, 18 preliminary injunction motion, it seems like the thing 19 you want to do is at least let us pay in court the amount . 20 that is owed for the back issue and then at the end of 21 the day, you know, the insurance company would be in a 22 position of saying, well, the Judge decided to rescind 23 this matter, at the end decided to terminate it. We've 24 done everything we could to keep the policy in place. 25 But simply not paying the policy for a period of years KATHY Y. JONES, SCR E 10 coEE of 25 65 FILED: NEW YORK COUNTY CLERK 06/03/2019 02:42 PM NDER INDEX NO. 50- $320 652830/2017 IFILED: NEW YORK COUNTY CLERK 05/15/2019 03:34 PM| NYSCEF sygegr DOC. sc, NO. go. 80 re REEnED RECEIVED NYSCEF: witsaF: M 06/05/2019 @% 201 6 Proceedings 1 and saying you want coverage because you paid another 2 entity for insurance, I don't know how that adds up 3 legally. 4 MR. SPERBER: Just to address those issue, your 5 Honor. 6 First of all, the Trust brought the order to 7 show cause and fully complied with Judge Mill's direction 8 to pay premiums on a going-forward basis. 9 THE COURT: Going forward is fine. It's the past 10 issue that was not addressed by the prior decision. And 11 when it ultimately was dismissed, this was an issue that 12 was left hanging and this was an issue that remained a 13 contention between the parties. 14 You have to pay monthly or regular payments to 15 keep insurance going. If you don't do it, then the 16 policy lapses unless you have some court order saying 17 that the policy doesn't and you didn't have a court order 18 saying the policy didn't lapse. You had a decision in 19 which the Judge said, well, we'll pump this for later. 20 MR. SPERBER: Correct, your Honor. Again the 21 Trust did pay or at least attempted to pay all the premiums 22 at Judge Mill's direction going forward and Judge Mills, 23 her determination was that the issue of back premium would 24 be held with the status quo basically being maintained, 25 meaning we resolve the issue at some point in time when we KATHY Y. JONES, SCR M 11 affE of 2BB 65 FILED: IFILED: NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 06/03/2019 05/15/2019 02:42 03:34 PM