Chipetine v. William Penn Life Insurance

227 A.D.2d 216, 642 N.Y.S.2d 271, 1996 N.Y. App. Div. LEXIS 5161

Opinion

Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about July 24, 1995, awarding plaintiff the proceeds of a life insurance policy, with interest at the rate of 9% from the date of the insured’s death, and bringing up for review a prior order, same court and Justice, entered July 13, 1995, which granted plaintiff’s motion for summary judgment, unanimously modified, on the law and on the facts and in the exercise of discretion, to vacate the provision for pre-judgment interest at the CPLR rate of 9% and to award, instead, prejudgment interest at the rate of interest provided in Insurance Law § 3214 (c) and to remand the matter for a recalculation of pre-judgment interest in accordance herewith and, except as thus modified, affirmed, without costs or disbursements. Appeal from the order unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

Despite the unique procedural history of this case wherein plaintiffs initial action to recover the proceeds of a life insurance policy evolved into an impleader action of an equitable nature, it was an abuse of discretion to award pre-judgment interest at the CPLR judgment rate of 9%, rather than in accordance with Insurance Law § 3214 (c). For at least two years after the death of the insured, a homicide victim, plaintiff, the sole beneficiary under the policy, was a suspect of the New York City Police Department, which was investigating the homicide. In such circumstances, there was not untoward delay on the insurer’s part either in investigating the death or in paying on the claim so as to warrant the imposition of the higher rate of interest for the pre-judgment period. Concur— Sullivan, J. P., Ellerin, Rubin, Ross and Nardelli, JJ.