# Brettler v. Allianz Life Insurance Company of North America

> District Court, E.D. New York · May 31, 2022

URL: https://www.frixlaw.com/law-library/cases/10307987

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10307987

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------- x
:
HERMAN BRETTLER, Trustee of the Zupnick :
Family Trust 2008A, : MEMORANDUM & ORDER
:
Plaintiff, : 16-cv-6855 (ENV) (SLT)
:
v. :
:
ALLIANZ LIFE INSURANCE COMPANY OF :
NORTH AMERICA, :
:
Defendant. x

--------------------------------------------------------------

VITALIANO, D.J.

On September 19, 2016, plaintiff Herman Brettler, in his capacity as trustee of the
Zupnick Family Trust 2008 (the “Trust”), commenced this action against Allianz Life Insurance
Company of North America (“Allianz”), seeking a declaration that a life insurance policy issued
by Allianz (the “policy”) remained in effect. Compl., Dkt. 1-1. On December 6, 2018, this
Court granted Allianz’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
finding that because the previous owner of the policy did not provide Allianz with written notice
of its assignment to the Trust, as the terms of the policy required, the assignment was ineffective
and the Trust lacked contractual standing. See MTD Order, Dkt. 27, at 8–9.
On appeal, the Second Circuit held that the question of whether a policy owner’s failure
to comply with this type of written notice requirement renders an assignment ineffective under
New York law is likely a question best answered by the New York Court of Appeals, given the
lack of binding precedent on this issue. See 2d Cir. Mandate, Dkt. 39, at 4. However, in hope of
disposing the matter without the need for certification, the Second Circuit remanded and directed
this Court to determine, in the first instance: (1) whether plaintiff’s claims are time-barred under
New York law, and (2) whether the policy was assignable on May 24, 2016, when it was
allegedly transferred back into the Trust’s ownership. Id.
Upon review of the parties’ supplemental briefs, the Court finds that plaintiff’s claims are
not time-barred and plaintiff has plausibly alleged that the lapsed policy was assignable as of

May 24, 2016. Accordingly, dismissal under Rule 12(b)(6) is warranted, but only on the grounds
identified in the December 2018 order.
Factual Background and Procedural History1
On April 7, 2008, Allianz issued a life insurance policy to the Trust, valued at
$8,000,000, on the life of Dora Zupnick. Compl. ¶ 4. On May 24, 2012, Allianz received notice
that the Trust was assigning its full interest in the policy to Miryam Muschel. See Dkt. 17-1.
Retelling a now familiar story, the following year, Allianz sent Muschel a grace period
notice, dated May 4, 2013, that stated $117,810.90 in premium payments was due to Allianz by
June 8, 2013, the end of the grace period. Compl. ¶¶ 10–11. The Trust purportedly issued
Allianz a check for the requested amount on June 7, but on June 25, Allianz advised Muschel

that the check had not been honored by the bank. Id. ¶¶ 13–14; Dkt. 26. Then came another
twist. In a letter dated August 20, 2013, the bank notified Allianz that the check was returned
due to a bank error and should have been honored. See Compl. ¶ 15; Dkt. 21 at Ex. B. 2 The
letter also advised Allianz that a replacement check “has already been or will be issued shortly”
by Herman Brettler. Id.

1 The Court assumes the parties’ familiarity with the key facts and procedural history of this
action and recapitulates them only as context requires.

2 Because the August 20, 2013 letter from the bank to Allianz was incorporated into the
complaint by reference, the Court may properly consider it here. Sira v. Morton, 380 F.3d 57, 67
(2d Cir. 2004).
On May 24, 2016, Muschel executed a written agreement assigning the policy back to the
Trust, but no notice was provided to the insurer. Allianz first became aware of the purported
change in ownership, it claims, when plaintiff commenced this action in Kings County Supreme
Court, seeking a declaratory judgment that the policy was “in full force and effect” and had been

“continuously in full force and effect since the Policy was issued without any lapses in
coverage.” Compl. ¶ 17; Dkt 26. The suit was filed on September 19, 2016 and removed on
December 12, 2016.
Substantively, the Court dismissed the complaint on December 6, 2018, holding that the
assignment underlying plaintiff’s claim was invalid as a matter of law and, as such, the Trust
lacked contractual standing. See Dkt. 27 at 7–9. Finding that whether the failure to comply with
a written notice provision in a life insurance policy invalidated the assignment was an open
question of New York law and that other pathways might exist to the same disposition without
the need for certification, on April 9, 2021, the Second Circuit remanded to permit supplemental
briefing and consideration of such issues. Dkt. 39 at 4.3

Discussion
I. Collateral Estoppel
In a preemptive strike that seeks to establish a different pathway to victory, plaintiff
argues that the questions posed by the Second Circuit have already been dispositively answered
in two other actions in this District—Blau v. Allianz, 14-cv-3202 (Garaufis, J.), and Halberstam
v. Allianz, 16-cv-06854 (Ross, J.)—which, plaintiff claims, are binding on this Court pursuant to
the doctrine of collateral estoppel. Those two actions, plaintiff asserts, stem from other

3 Dora Zupnick passed away after the appeal was filed in early 2019 but before the supplemental
briefs were submitted in June 2021. See Defendant’s Supplemental Brief (“Def. Supp. Br.”),
Dkt. 40, at 2; Plaintiff’s Supplemental Brief (“Pl. Supp. Br.”), Dkt. 41, at 1.
“identical” life insurance policies on the life of Dora Zupnick, which were issued simultaneously
with the policy at issue here and were also terminated by Allianz for failure to pay premiums.
See Pl. Supp. Br. at 1–2. In basic symmetry with Brettler, the plaintiffs in Blau and Halberstam
sought a declaration that their respective life insurance policies had not lapsed.

Understanding the steeplechase nature of the apparent race among the companion
litigations is essential to fair consideration of plaintiff’s threshold argument, if not
administratively compelling for related case assignments in situations like these. At any rate,
three decisions undergird the analysis of plaintiff’s argument. First, on June 17, 2017, Judge
Ross in Halberstam granted in part and denied in part Allianz’s motion to dismiss, finding that
the action was timely under Insurance Law § 3211(d) and C.P.L.R. § 214(2) and that Halberstam
had “pled the bare minimum necessary to state a claim” on the basis that Allianz’s grace
notice—and, thus, its termination of the policy—was invalid. Halberstam v. Allianz Life Ins. Co.
of N. Am., 2017 WL 10187689, at *7–8 (E.D.N.Y. June 9, 2017) (“Halberstam I”). Second, on
February 18, 2018, Judge Garaufis in Blau granted summary judgment for Allianz, finding that

although a disputed issue of fact existed regarding the accuracy of the amount due in Allianz’s
grace notice, the “[p]laintiff's nonpayment for a year following the due date of the premium
served to terminate the policy.” Blau v. Allianz Life Ins. Co. of N. Am., 2018 WL 949222, at *4–
6 (E.D.N.Y. Feb. 16, 2018). Finally, wrapping up the Halberstam case, on October 2, 2018,
Judge Ross granted summary judgment for the plaintiff and held that the at-issue life insurance
policy did not lapse after one year of non-payment. Halberstam v. Allianz Life Ins. Co. of N.
Am., 349 F. Supp. 3d 164, 171–74 (E.D.N.Y. 2018) (“Halberstam II”). Though, at a distance,
this conclusion appears in conflict with that of Judge Garaufis’s, the facts buttressing this
circumstance-specific holding belie any notion of inconsistency. Indeed, unlike the plaintiff in

Blau—who admitted “that he did not attempt to make any payments on the [p]olicy” after
defaulting, Blau, 2018 WL 949222, at *6—the plaintiff in Halberstam II repeatedly offered to
pay all outstanding premiums, which Allianz rejected, insisting that the plaintiff reinstate the
policy before making further payments. Judge Ross therefore held that, by refusing to allow the
plaintiff to pay the outstanding premiums, Allianz repudiated the contract and excused the Trust

from its future payment obligations. Halberstam II, 349 F. Supp. at 171–74.
Most importantly, notwithstanding the substantial factual and legal overlap among this
case and the other two, the overlap, although helpful, does not afford any of these earlier
decisions preclusive effect. The doctrine of collateral estoppel applies only when the issues in
both proceedings are “identical in all respects.” Faulkner v. Nat'l Geographic Enter. Inc., 409
F.3d 26, 37 (2d Cir. 2005) (quoting Commissioner v. Sunnen, 333 U.S. 591, 599–600, 68 S.Ct.
715, 92 L.Ed. 898 (1948)). Collateral estoppel is therefore inapplicable “when the essential facts
of the earlier case differ from the instant one, even if they involve the same legal issues.” Env’t
Def. v. U.S. E.P.A., 369 F.3d 193, 202 (2d Cir. 2004).
Clearly, the essential facts out of which the present action arises are not “identical in all

respects” to those of Blau, Halberstam I, or Halberstam II. Most obviously, even assuming the
three policies on Zupnick’s life were identical, the purportedly defective grace period notices
were not. Compare Compl. ¶ 10–11 (May 4, 2013 grace notice demanded $117,810.90 in
premium payments), with Halberstam II, 349 F. Supp. 3d at 167 (August 7, 2012 grace notice
demanded $116,511.94 in premium payments), and Blau, 2018 WL 949222, at *1 (March 10,
2011 grace notice demanded $71,900.74 in premium payments). Corresponding to these
payment history differences, Allianz also made particularized determinations in each case as to
when it deemed a policy lapsed. Additionally, as discussed in Section III, infra, there are
virtually no allegations by Brettler concerning the parties’ post-lapse conduct—facts of the sort

that were critical to Blau and Halberstam II. See Compl. ¶ 13–16. Truly exposing the soft
underbelly of his argument, however, is the fact that plaintiff has not offered any coherent reason
as to why Halberstam II, in which summary judgment was granted for plaintiff, should have a
preclusive effect but Blau, in which summary judgment was granted for Allianz, should not. See
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330, 99 S. Ct. 645, 58 L.Ed.2d 552 (1979) (noting

offensive collateral estoppel is disfavored when “the judgment relied upon as a basis for the
estoppel is itself inconsistent with one or more previous judgments in favor of the defendant”).
In sum, none of the cases advanced by plaintiff for estoppel purposes is entitled to
preclusive effect. The decisions in Blau and Halberstam, while helpful to resolving the issues
raised in the supplemental briefs, do not bind the Court to a particular outcome.
II. Timeliness
A. New York Insurance Law § 3211(d)
New York Insurance Law section 3211(d) provides that “[n]o action shall be maintained
to recover on any life insurance policy . . . which has lapsed because of default in making [a
premium] payment . . . unless the action is instituted within two years from the date of such

default.” N.Y. Ins. Law § 3211(d). Multiple courts, including Judge Ross in Halberstam I, have
held that, for purposes of this provision, an action to “recover on a[] life insurance policy” does
not include those in which the requested relief is a declaratory judgment that a policy remains in
full force and effect. See Halberstam I, 2017 WL 10187689, at *8 (“New York Insurance Law §
3211(d) . . . does not apply where, as here, a litigant seeks a declaratory judgment that a policy is
in full force and effect.”); Weiss v. Sec. Mut. Life Ins. Co. of N.Y., 45 N.Y.S.3d 169, 171 (N.Y.
App. Div. 2017) (“[B]ecause the instant action is one for a declaratory judgment, rather than to
recover on the policy, it is not time-barred by the two year statute of limitation contained in
Insurance Law § 3211(d).”); Lebovits v. PHL Variable Ins. Co., 2014 WL 1312073, at *2

(E.D.N.Y. Mar. 28, 2014) (“[T]he Trust's action for a declaratory judgment that the policy
remains in full force and effect is not an action to recover on the policy and, therefore, not
subject to § 3211(d).”).
Allianz does craft a rejoinder nonetheless, arguing that § 3211(d) is applicable because
although Zupnick was alive when this action was commenced and when Halberstam I was

decided, she has since passed away, effectively transforming the declaratory action into one
seeking to “recover” on the policy because, Allianz claims, “the only benefit” of seeking a
declaration that the policy is in full force and effect is to receive the death benefit under the
policy. Def. Supp. Br. at 3 n.1.
Unsurprisingly, given the novelty of this argument, Allianz points to no direct authority
that supports retroactive application of § 3211(d) in the context of a life insurance policy. Chief
among the cases it offers as indirect support is Dama v. Prudential Ins. Co. of Am., 2018 WL
6706314 (E.D.N.Y. Dec. 20, 2018), which involved an action for breach of contract, not
declaratory judgment, in connection with a long-term care policy that entitled the insured to
recover benefits only after he incurred certain qualifying expenses. Id. at *1. The Dama

complaint, which was filed several years after the insured suffered a stroke and had incurred such
qualifying expenses, explicitly alleged that the plaintiff was deprived of the necessary
reimbursement under the policy and sought monetary relief. Id. at *6–8. As a result, the court
rejected the plaintiff’s argument that “his action seeks to reinstate the [p]olicy rather than recover
benefits” and applied the shorter limitations period applicable to actions to recover benefits. Id.
at *6.
Significantly, unlike in Dama, the Trust did not have a claim for a policy pay-out at the
time this action was filed, which is why, presumably, it has stayed as one for declaratory relief.
More importantly, neither Dama nor any other case relied upon by plaintiff suggests that the

death of an insured automatically transforms an otherwise timely action for declaratory judgment
that is exempt from § 3211(d) into an action to enforce the policy and recover under it, which
would be an action for relief that is subject to the provision’s two-year limitations period.
Finding nothing in New York’s statutory or decisional law that compels it, the Court will not, at
apparent first impression, create and apply such a rule now to lock plaintiff out of the courthouse.

Accordingly, this question is answered in the negative, and it is held that Brettler’s lawsuit is not
time-barred by § 3211(d).
B. C.P.L.R. § 214(2)
Nor is the action time-barred by C.P.L.R. § 214(2). That provision imposes a three-year
statute of limitations for “action[s] to recover upon a liability, penalty or forfeiture created or
imposed by statute.” C.P.L.R. § 214(2). However, a different provision, C.P.L.R. § 213, imposes
a six-year statute of limitations for “action[s] for which no limitation is specifically prescribed by
law,” id. § 213(1), and “action[s] upon a contractual obligation or liability, express or implied,”
id. § 213(2).
Although the “catch-all” provision of § 213(1) is traditionally applied to actions that seek

only equitable remedies, this is not a per se rule. See, e.g., Hartnett v. New York City Transit
Auth., 86 N.Y.2d 438, 443–44, 657 N.E.2d 773, 776 (1995); Medoy v. Warnaco Emps.’ Long
Term Disability Ins. Plan, 2006 WL 355137, at *2–4 (E.D.N.Y. Feb. 15, 2006). Rather, when
there is no limitations period that governs the specific claim at issue, the court must “examine the
substance of th[e] action to identify the relationship out of which the claim arises and the relief
sought’” to determine whether § 214(2) or § 213 applies. Hartnett, 86 N.Y.2d at 443–44
(quoting Solnick v. Whalen, 49 N.Y.2d 224, 229, 401 N.E.2d 190, 194 (1980)).
Framed by limitations provisions that, at times, seem to work at cross-purposes, Allianz
argues that the three-year limitations period imposed by § 214(2) applies because the complaint

alleges that its grace notice and termination of the policy violated provisions of New York
Insurance Law. See Def. Supp. Br. at 5–6 (citing Compl. ¶¶ 8, 9, 24, 26–28, 27). But, at best,
that is where the inquiry begins, not where it ends. That certain conduct might violate provisions
of the insurance law does not mean that the insurance law has created a private right of action
independent of the victim’s rights under the contract of insurance. The precise conduct made

unlawful under the insurance law is, as plaintiff claims in this lawsuit, conduct that breaches the
policy. See, e.g., Compl. ¶¶ 8–9, 20, 23, 27, 34–35, 40, 45–48, 51–52, 56. With a violation of
the insurance laws unnecessary to plaintiff’s complete relief in the cause of action alleged, the
limitations period established by § 214(2) has no applicability. See Hartnett, 86 N.Y.2d at 444
(“[I]n determining the applicability of CPLR 214(2), the pertinent inquiry is whether the statute
creates a liability ‘for wrongs not recognized in the common or decisional law,’ and which would
not exist but for the statute.” (quoting State v. Cortelle Corp., 38 N.Y.2d 83, 86, 341 N.E.2d 223,
224 (1975))). Additionally, Allianz has not identified, nor is the Court aware of, any statute,
particular to this context, that affords plaintiff the equitable relief sought in the complaint. See,
e.g., Saratoga Cty. Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 815, 798 N.E.2d

1047, 1055 (2003) (finding action for declaration and injunction fell within “the residuary six-
year statute of limitations period under C.P.L.R. 213(1)” because no statute “provide[d] plaintiffs
a way of obtaining the relief they seek”).
As much as Allianz might like to wish or transform it away, when the smoke clears,
plaintiff’s lawsuit does not allege a cause of action for a violation of New York’s insurance law,
the premium payment obligations and parties’ relationships arose from the policy not statutory
law, and the only relief requested in the complaint is a declaration that the parties’ contract
remains in effect. Given this straightforward reality, the six-year limitations period imposed by
C.P.L.R. § 213 applies to plaintiff’s action.4 Consequently, because the action was filed within
six years of the issuance of the allegedly flawed grace notice and termination of the policy, it is
not time-barred.
III. Assignability of Muschel’s Interest

The final question to be addressed on remand is whether Muschel had an assignable
interest in the policy on May 24, 2016. Once again, the discussion of this same legal issue in
Halberstam and Blau, while not binding, is nevertheless helpful to its resolution here.
Still, of course, the decision must begin with the words of the controlling substantive
statute. That statute, New York Insurance Law § 3211(a)(1), provides, in pertinent part:
No policy of life insurance . . . shall terminate or lapse by reason of default in
payment of any premium, installment, or interest on any policy loan in less than
one year after such default, unless, for scheduled premium policies, a notice shall
have been duly mailed at least fifteen and not more than forty-five days prior to the
day when such payment becomes due.

N.Y. Ins. Law. § 3211(a)(1). The statute further provides that such notice must “state the
amount of such payment, the date when due, [and] the place where and the person to whom it is
payable.” Id. § 3211(b)(2).
Though perhaps creating a trap for the quick reader, the law generates a two-track system
for enabling insurers to cancel policies. Specifically, § 3211 “establishes two dates on which
past-due insurance policies lapse.” Maharan v. Berkshire Life Ins. Co., 110 F. Supp. 2d 217, 221
(W.D.N.Y. 2000). If the insurer mails a § 3211(b)(2)-compliant notice within the required
period, then the insurer may lapse the policy for non-payment on the date of default. If,
however, no valid notice of default is sent, the insurer may lapse the policy only after one year of

4 This holding is consistent with that of Halberstam I, where the court rejected the same
argument advanced by Allianz here and found that “in an action for a declaratory judgment, a
six-year statute of limitations applies, as stated in . . . C.P.L.R., § 213.” Halberstam I, 2017 WL
10187689, at *8 (citing Solnick, 401 N.E.2d at 193))).
default in payment. See id.; Blau, 2018 WL 949222, at *6 (“After a year of nonpayment, the
insurer may lapse the policy without any notice.” (citing Weiss, 45 N.Y.S.3d at 171)); Dobbs v.
First Alexander Hamilton Life Ins. Co., 231 A.D.2d 959, 959 (N.Y. App. Div. 4th Dep’t 1996).
In other words, when an insurer’s notice of default fails to comply with the requirements of

§ 3211(b)(2), “[t]he only consequence . . . is that the lapse or termination is postponed until one
year after the date of the default.” Margulis v. William Penn Ass’n, 472 N.Y.S.2d 848, 850 (Civ.
Ct. 1984); see Weiss, 45 N.Y.S.3d at 171 (“Regardless of whether the premium notice mailed by
the defendant to the plaintiff complied with the statutory requirements [of § 3211(b)(2)], the
policy lapsed . . . in accordance with the statute, one year after the due date of the missed
premium payment . . .” (citations omitted)); Lebovits v. PHL Variable Ins. Co., 199 F. Supp. 3d
678, 681 (E.D.N.Y. 2016) (“Although noncompliance with § 3211 means that an insurer cannot
lapse the policy within one year of the default, it may still lapse the policy after that period.”).
In a counterpoint, plaintiff argues that the policy “was never terminated” because
Allianz’s grace notice significantly overstated the amount due to prevent lapse, in violation of

N.Y. Ins. Law. § 3211(b)(2). See, e.g., Lebovits, 199 F. Supp. 3d at 680 (“[A] notice that
misstate[s] the premium due” is defective “as long as the misstatement was not de minimis.”);
Weiss v. Lincoln Nat'l Life Ins. Co., 2016 WL 4991533, at *5 (E.D.N.Y. Sept. 15, 2016) (“Unlike
a notice that includes only a minor error or an obvious typographical error in the premium
amount due, a notice with a significantly higher amount due than actually required is ineffective
to cancel the policy.” (cleaned up)). Brettler pegs his pleading to this statutory requirement,
pointing out that the complaint alleges that although Allianz’s grace notice “requested
$117,810.90, in reality, approximately $75,000 or less would have prevented the lapse.” Compl.
¶ 33. Fully supporting the allegation that Allianz’s notice demanded significantly higher

payment than was required is the provision of the policy providing that, once the grace period
has commenced, “a premium payment sufficient to keep the policy in force for three months is
required” to avert lapse. Dkt. 17-2 at 8; see also N.Y. Ins. Law § 3203(a)(1) (“[T]he
policyholder is entitled to a sixty-one day grace period . . . within which to pay sufficient
premium to keep the policy in force for three months . . . .”). Very significantly, at this stage,

this factual allegation in itself is sufficient to plausibly plead that Allianz’s grace notice was
defective. Halberstam I, 2017 WL 10187689, at *7; Weiss, 2016 WL 4991533, at *5.
At the same time, though, the pleading of this fact does not mean that the policy “never”
lapsed. Per § 3211(a)(1), if plaintiff never tendered payment for the outstanding premiums, the
lapse would have simply been “postponed until one year after the date of the default.” Margulis,
472 N.Y.S.2d at 850. Accordingly, the dispositive question is whether plaintiff has pleaded facts
sufficient to support an inference that either the Trust or Muschel “tendered payment in a manner
that would prohibit the application of the one-year limitation rule.” Halberstam I, 2017 WL
10187689, at *7. The Court finds that plaintiff has made such a showing.
The complaint goes on to assert that the Trust sent Allianz a check for $117,810.90 on

June 7, 2013, one day before the grace period was set to expire. Compl. ¶¶ 10–14; Dkt. 26.
Although Allianz notified Muschel that the check had not been honored by the bank, in a letter
dated August 20, the bank informed Allianz that the check was returned due to a bank error and
that a replacement check “has already been or will be issued shortly” by Herman Brettler.
Compl. ¶¶ 15–16; Dkt. 21 at Ex. B. Plaintiff also broadly alleges it “is prepared and has always
been prepared to pay any outstanding premiums” on the policy. Compl. ¶ 53.
These sparse but substantiated allegations are sufficient to avoid dismissal on this basis.
But-for the bank’s error, plaintiff’s June 7 payment would have prevented the policy from
lapsing for non-payment; even if the check reached Allianz after June 8, it would have

constituted payment within one year of default, thereby precluding application of § 3211(a)(1)’s
one-year rule. Moreover, the August 20 letter can be reasonably construed as an offer to reissue
the bounced check. These facts are far more analogous to Halberstam than they are Blau. In
Blau, the Trust did not even attempt to make any premium payments at any point following
receipt of the deficient grace notice. Blau, 2018 WL 949222, at *1, 6. In contrast, in

Halberstam, the Trust offered to pay its outstanding premiums several months after receiving the
deficient grace notice, but Allianz refused to accept further payment or place the policy back in
active status. Halberstam I, 2017 WL 10187689, at *7; see also Lebovits, 199 F. Supp. 3d at 681
(insured’s attempt to pay past-due premiums was sufficient to prevent lapse under § 3211’s one-
year rule).
To be sure, the Trust’s attempted payment to Allianz did not, in itself, excuse plaintiff
from all future premium payment obligations or necessarily prevent the policy from lapsing at a
future date. It remains to be seen whether Allianz’s subsequent conduct amounted to a
repudiation of the policy or otherwise absolved the Trust of its responsibility to honor its terms.
See Halberstam II, 349 F. Supp. 3d at 172–73 (“When a life-insurance company repudiates its

contract, either by terminating the policy outright or by insisting on extracontractual performance
as a condition of continued coverage, the company cannot then rely on the policyholder's failure
to tender premiums in arguing that the policy has lapsed.”). Yet, although far from a guaranteed
pathway to success, success is, at least at this stage in the litigation, certainly attainable given the
plausibility of the facts alleged. Accordingly, because the grace period notice was deficient and
the Trust tendered the amount demanded by Allianz within one year of default, the Court cannot
conclude that, as a matter of law, the policy was properly terminated before May 24, 2016, when
Muschel attempted to assign her interest in the policy back to the Trust.
In sum, it is the Court’s view that both questions posed by the Second Circuit must be

answered in the negative: the action is not time-barred, and plaintiff has plausibly alleged that
the Trust’s attempted payment prevented the policy from lapsing and, thus, that the policy was
assignable on May 24, 2016. As such, dismissal is not warranted on either of these two
additional bases. However, these findings, of course, do not disturb the Court’s initial holding
that dismissal is proper because the failure to give Allianz written notice of the policy’s

assignment deprives the Trust of contractual standing to bring suit.
Conclusion
For the foregoing reasons, the Court finds, in answer to the questions the Second Circuit
requested it consider on remand, that plaintiff has plausibly alleged (1) the action is timely, and
(2) the policy was assignable on May 24, 2016.
Pursuant to the Second Circuit’s order, within 21 days from the date this Order is entered
on the docket, the parties shall notify the Clerk of Court for the Second Circuit of this decision
by letter. No additional notice of appeal is necessary.
So Ordered.

Dated: Brooklyn, New York
May 24, 2022

/s/ Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307987. Public record. Not legal advice.