Supreme Court, New York County

Justice Braun

Thompson v. Savings Bank Life Insurance Fund - this is an action for breach of contract. Plaintiff moves for summary judgment. Defendant does not oppose the motion but contends that, pursuant to Insurance Law § 3214 (b) and (c), interest should be computed from May 24, 1996, the date of decedent's death, at the rate of interest paid by Defendant on proceeds left under the interest settlement option, which is 3.5 percent per annum. Plaintiff argues in reply that interest should be awarded at 9 percent per year, pursuant to CPLR 5004, from July 17, 1996, the date of a letter from Defendant to Plaintiff which states that decedent's application of a letter from Defendant to Plaintiff which states that decedent's application for life insurance was considered to be withdrawn.

Although Plaintiff does allege that this is an action on an insurance policy, which Insurance Law § 3214 would control, she otherwise alleges that it is an action on a Conditional Receipt. It is undisputed that only such document was issued, and not an insurance policy. Even Defendant only refers to issuance of a Conditional Receipt. The three documents by Defendant submitted as Exhibit F to the moving papers only speak of an application, not a policy. As Defendant had not finally accepted or rejected the decedent's application at the time of his death, there was no policy (see, Schotzer v. William Penn Life Ins. Co. of New York, 84 NY2d 639, 642 [1994]). Furthermore, no final settlement of the action has been reached between Plaintiff and Defendant, as required by Insurance Law § 3214 (b).

Thus, Plaintiff should be awarded summary judgment in the amount of $100,000 plus interest at the rate of 9 percent (see, Schotzer v. William Penn Life Ins. Co. of New York, 232 AD2d 623, 624-625 [2nd Dept. 1996]). As plaintiff requests interest from the date of July 17, 1996 letter deeming withdrawn the application for insurance, interest will be set from that date, which is equivalent to a refusal to pay the proceeds. Plaintiff indicated at oral judgments a desire for motion costs. Motion costs should be awarded pursuant to CPLR 8106 and 8202, but, as Defendant did concede part of the motion only $50 should be awarded.