19-87-cv
Brettler, Tr. of Zupnick Fam. Tr. 2008 A v. Allianz Life Ins. Co. of N. Am.
United States Court of Appeals
for the Second Circuit
August Term, 2019
(Argued: December 17, 2019
Final Briefs Submitted: January 12, 2024 Decided: April 5, 2024)
Docket No. 19-87-cv
_____________________________________
HERMAN BRETTLER, TRUSTEE OF THE ZUPNICK FAMILY TRUST 2008 A,
Plaintiff-Appellant,
v.
ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA,
Defendant-Appellee.
_____________________________________
Before:
KEARSE, LOHIER, and LEE, Circuit Judges.*
Herman Brettler challenges the dismissal of his complaint against Allianz
Life Insurance Company by the United States District Court for the Eastern
District of New York (Vitaliano, J.). The complaint seeks a declaratory
judgment that a life insurance policy purportedly assigned to a trust of which
Brettler is a trustee is still in effect. The sole remaining question presented is
* Judges Rosemary S. Pooler and Peter W. Hall, originally members of the panel, passed
away before the filing of this opinion. Judges Amalya L. Kearse and Eunice C. Lee
were added to the panel. See 2d Cir. IOP E(b).
whether Brettler had contractual standing under New York law to bring suit
where the life insurance policy was transferred without providing notice to
Allianz, in contravention of its terms. We certified the question to the New
York Court of Appeals. The Court of Appeals having answered the certified
question, we hold that Brettler lacks contractual standing to bring this lawsuit.
We therefore AFFIRM.
David BenHaim, Lipsius-BenHaim Law, LLP, Kew
Gardens, NY, for Appellant.
Dawn B. Williams, Faegre Drinker Biddle & Reath LLP,
Washington, DC, for Appellee.
LOHIER, Circuit Judge:
This case returns to us following our receipt from the New York Court of
Appeals of an answer to a certified question. As described in our prior order,
Brettler, Trustee of Zupnick Family Trust 2008 A v. Allianz Life Insurance Co. of North
America, 842 F. App’x 710, 711-12 (2d Cir. 2021) (Brettler I) and opinion, Brettler,
Trustee of Zupnick Family Trust 2008 A v. Allianz Life Insurance Co. of North America,
57 F.4th 57, 59-61 (2d Cir. 2022) (Brettler II), familiarity with which is assumed, on
April 7, 2008, Allianz issued a life insurance policy on the life of Dora Zupnick
(the “Policy”) to the Zupnick Family Trust 2008A (the “Trust”). The Policy
provides in relevant part:
You [defined as the owner of the policy] may assign or transfer all or
specific ownership rights of this policy. An assignment will be
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effective upon Notice [defined as “Our receipt of a satisfactory
written request”]. We [defined as Allianz] will record your
assignment. We will not be responsible for its validity or effect, nor
will we be liable for actions taken on payments made before we
receive and record the assignment.
App’x 54, 64.
In April 2012 the Trust assigned the policy to Miryam Muschel. The
Policy’s assignment provision required the Trust to notify Allianz of the
assignment through a “written request.” App’x 54, 64. Allianz provides a
Service Request form to do so. After Herman Brettler, a trustee, signed the
“Owner’s signature” portion of the Service Request form on behalf of the Trust,
the Trust’s lawyers transmitted the form to Allianz. App’x 30–32. On May 4,
2013, Allianz notified Muschel that it was owed $117,810.90 in premium
payments by June 8 of that year. On June 7 the Trust sent Allianz a check from a
Chase Bank account for the amount due. Chase did not honor the check.
Instead, it notified Allianz that the failure to honor the check was a “bank error.”
App’x 8, 178. Allianz nevertheless “consider[ed] the Policy lapsed and without
effect for failure to pay premiums.” App’x 8.
On May 24, 2016, Muschel and the Trust signed a formal agreement
assigning the Policy to the Trust. Muschel and Brettler completed Allianz’s
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“Request to Transfer Ownership” form in connection with the agreement, App’x
144–48, but no one informed Allianz of the assignment back to the Trust. On
September 19, 2016, Brettler, in his capacity as a trustee, brought this action for a
declaratory judgment that the Policy remained in effect. Allianz promptly
moved to dismiss the complaint on the grounds of, among others, lack of
contractual standing. In response to Allianz’s motion, Brettler filed the May 24
agreement on the District Court’s docket.
On December 6, 2018, the United States District Court for the Eastern
District of New York (Vitaliano, J.) granted Allianz’s motion to dismiss. The
District Court held that the Trust lacked contractual standing to sue Allianz
because Muschel, to whom the Trust had previously transferred ownership of
the Policy, transferred it back to the Trust without notifying Allianz.
When Brettler appealed in 2019, we concluded that whether “failure to
comply with a provision in a life insurance policy requiring written notice of an
assignment renders the assignment ineffective is likely a question best answered
by the New York Court of Appeals.” Brettler I, 842 F. App’x at 712. We
nevertheless opted not to certify the question at that time and instead remanded
the case and directed the District Court to consider alternative grounds for
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dismissal because there were “a number of issues, understandably left
unresolved by the district court, that may dispose of this matter without the need
for certification.” Id. at 712–13. On remand, the District Court determined that
there were no such grounds. Brettler, Tr. of Zupnick Fam. Tr. 2008A v. Allianz Life
Ins. Co. of N. Am., No. 16-CV-6855 (ENV) (SLT), 2022 WL 1749134, at *1 (E.D.N.Y.
May 31, 2022).
When the matter returned to us, we recalled the mandate and certified the
following question to the New York Court of Appeals regarding the effect of
insufficient notice on a purported assignee’s ability to sue: “Where a life
insurance policy provides that ‘assignment will be effective upon Notice’ in
writing to the insurer, does the failure to provide such written notice void the
assignment so that the purported assignee does not have contractual standing to
bring a claim under the Policy?” Brettler II, 57 F.4th at 61, 65–66. The Court of
Appeals accepted and then reformulated our certified question to ask the
following: “Where a life insurance policy provides that ‘assignment will be
effective upon Notice’ in writing to the insurer, does the failure to provide such
written notice deprive the purported assignee of contractual standing to bring a
claim under the Policy against the insurer?” Brettler v. Allianz Life Ins. Co. of N.
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Am., 40 N.Y.3d 450, 452 (2023); see 22 N.Y.C.R.R. § 500.27(a); 2d Cir. R. 27.2(a).
On November 20, 2023, the New York Court of Appeals answered its
reformulated question in the affirmative. It held that, under New York law,
failure to provide notice to a contracting party deprives a purported assignee of
contractual standing to bring suit against that party. Brettler, 40 N.Y.3d at 452–
57. We thereafter instructed the parties to file supplemental briefing. In
response, Brettler now argues that commencing this suit itself serves as legally
sufficient notice to confer contractual standing. We disagree. The complaint is
not framed as a written request to Allianz and does not mention either an
assignment or the source of any assignment. As a result, as the New York Court
of Appeals concluded, “absent notice, Allianz is not bound by Muschel’s
assignment to the Trust, and therefore the Trust cannot enforce any of the
contractual rights of the policyholder against Allianz.” Id. at 456. We therefore
affirm the District Court’s dismissal of the complaint.
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We thank the New York Court of Appeals for its assistance in resolving
this unsettled question of New York law. We have considered Brettler’s
remaining arguments in support of contractual standing and conclude that they
are without merit. For the foregoing reasons, we AFFIRM the judgment of the
District Court.
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