Plain Lawn Cemetery Corp. v. Guardian Life Insurance

144 A.D.2d 297, 534 N.Y.S.2d 861, 1988 N.Y. App. Div. LEXIS 11263

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1988
• Status: Published

Opinion

Supreme Court, New York County (Edith Miller, J.), entered March 3, 1988, which, inter alia, granted plaintiff’s motion to confirm the Referee’s report, and granted plaintiff’s application for a preliminary injunction, is unanimously affirmed, without costs.

Furthermore, we confirm, on the law, on the facts, and, in the exercise of discretion, the Referee’s report for the purposes of judgment, and conclude that the policy was improperly canceled.

In April 1986, Plain Lawn Cemetery Corporation (plaintiff) commenced an action to enjoin the Guardian Life Insurance Company of America (defendant) from canceling a group insurance policy (policy), and for compensatory and punitive damages.

Following the joinder of issue, the IAS court, by order dated May 22, 1986, referred the issue of whether defendant had the right to cancel the subject policy to a Referee, to hear and report.

After hearing testimony from the parties, the Referee recommended in his report that the defendant’s purported cancellation of the policy was ineffective.

Plaintiff moved to confirm, and the defendant moved to reject the Referee’s report. Subsequent to consolidating these motions, the IAS court, inter alia, granted the plaintiff’s motion to confirm, and granted plaintiff’s application for a preliminary injunction.

Based upon our review of the record, in addition to affirming the IAS order, we confirm the Referee’s report for the purpose of judgment, and, accordingly, conclude that the policy was improperly canceled by defendant. Concur — Kupferman, J. P., Ross, Kassal, Rosenberger and Ellerin, JJ.