United States Life Ins. Co. in the City of N.Y. v Grunhut (2011 NY Slip Op 03110)

United States Life Ins. Co. in the City of N.Y. v Grunhut

2011 NY Slip Op 03110 [83 AD3d 528]

April 19, 2011

Appellate Division, First Department

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

As corrected through Wednesday, June 8, 2011

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

—[*1] Schindel, Framan, Lipsius, Gardner & Rabinovich LLP, New York (Ira S. Lipsius of counsel), for appellants.

Edison, McDowell & Hetherington LLP, Houston, Tex. (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]). Concur—Tom, J.P., Mazzarelli, Acosta, Renwick and Freedman, JJ. [Prior Case History: 2009 NY Slip Op 32227(U).]