FILED: NEW YORK COUNTY CLERK 11/28/ :20 PM INDEX NO /2012 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 11/28/2016

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1 FILED NEW YORK COUNTY CLERK 11/28/ PM INDEX NO /2012 NYSCEF DOC. NO. 125 RECEIVED NYSCEF 11/28/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x ERIC SCHNECK, Plaintiff, -- against -- FIRST UNUM LIFE INSURANCE COMPANY, Defendant x Index No /2012 Answer to Second Amended Complaint Defendant, First Unum Life Insurance Company ( First Unum ), by its attorneys, Begos Brown & Green LLP, for its answer to the second amended complaint, responds as follows Count 1 1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 1 and 2 of the second amended complaint. 2. Denies each allegation in paragraph 3 of the second amended complaint, except admits that First Unum is a New York corporation licensed to engage in the insurance business in the state of New York. 3. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 4 through 7 of the second amended complaint, except admits that plaintiff was a participant in a Group Long Term Disability Plan established by Anderson Kill & Olick PC ( Anderson Plan ), and that plaintiff applied for conversion of long term disability ( LTD ) insurance under the Anderson Plan in July Denies each allegation in paragraphs 8 and 9 of the second amended complaint, except admits that First Unum issued an LTD Conversion Certificate ( Conversion Certificate ) 1 of 7

2 to plaintiff in or about August 2008, with an effective date of June 24, First Unum refers the Court to the original Conversion Certificate for its true and complete terms. 5. Denies each allegation in paragraph 10 of the second amended complaint, and refers issues of law to the Court. 6. Denies each allegation in paragraphs 11 and 12, except admits that plaintiff kept the Conversion Certificate in force at least until he submitted a claim for benefits in Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 13 of the second amended complaint. 8. Denies each allegation in paragraphs 14 through 17 of the second amended complaint, except admits that plaintiff submitted a claim for benefits under the Conversion Certificate in or about May 2009, that First Unum accepted his claim on or about July 17, 2009, and that it paid benefits beginning May 24, First Unum refers to the claim file pertaining to plaintiff s claim for its true and complete contents. 9. Denies each allegation in paragraph 18 of the second amended complaint, except admits that the Conversion Certificate defines disability, among other terms, and refers to the original Conversion Certificate for its true and complete terms. 10. Denies each allegation in paragraphs 19, 20 and 21 of the second amended complaint, except admits that First Unum paid benefits under the Conversion Certificate until May 17, 2011, at which time it notified plaintiff that he no longer met the definition of disability in the Conversion Certificate. First Unum refers to the claim file for its true and complete contents. 11. Denies each allegation in paragraph 22, 23 and 24 of the second amended complaint. 2 2 of 7

3 Count Responding to paragraph 25 of the second amended complaint, repeats each response. 13. Denies each allegation in paragraph 26 of the second amended complaint. 14. Denies each allegation in paragraphs 27 and 28 of the second amended complaint, except admits that the Conversion Certificate provides that other income benefits will be deducted from disability benefits; that SSDI benefits are other income benefits; and that the Conversion Certificate provides for estimation of certain other income benefits in certain circumstances. First Unum refers the Court to the original Conversion Certificate for its true and complete terms. 15. Denies each allegation in paragraph 29 of the second amended complaint, except admits that First Unum s July 17, 2009 letter quoted and/or summarized provisions of the Conversion Certificate pertaining to other income benefits. First Unum refers the Court to the claim file for its true and complete contents. 16. Denies each allegation in paragraph 30 of the second amended complaint, except admits that plaintiff applied for SSDI benefits. 17. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 31 and 32 of the second amended complaint, except admits that First Unum referred plaintiff to GENEX to assist him with an application for SSDI benefits, and that one or more GENEX attorneys represented plaintiff in connection with his SSDI claim. 18. Denies each allegation in paragraph 33 of the second amended complaint, except admits that plaintiff executed a Third Party Fee Agreement with Waiver of Direct Payment with GENEX. 3 3 of 7

4 19. Denies each allegation in paragraph 34 of the second amended complaint, except admits that First Unum and GENEX communicated from time to time regarding plaintiff. 20. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 35, 36 and 37 of the second amended complaint. 21. Denies each allegation in paragraph 38 of the second amended complaint, and refers the Court to the Conversion Certificate for its true and complete terms. 22. Denies each allegation in paragraphs 39, 40, 41 and 42 of the second amended complaint. Count Responding to paragraph 43 of the second amended complaint, repeats each response. 24. Denies each allegation in paragraphs 44 through 48 of the second amended complaint. Count Responding to paragraph 49 of the second amended complaint, repeats each response. 26. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 50 and 51 of the second amended complaint. 27. Denies each allegation in paragraph 52 of the second amended complaint, and refers issues of law to the Court. 28. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 53 of the second amended complaint, but admits that plaintiff s premium on the Conversion Certificate is paid through December 31, of 7

5 29. Denies each allegation in paragraphs 54 through 56 of the second amended complaint, except admits that First Unum and certain other Unum Group subsidiary companies, without admitting liability, entered into a Regulatory Settlement Agreement ( RSA ) in connection with a multistate market conduct examination. First Unum denies that the allegations in these paragraphs fully and fairly describe the contents of the RSA, which speaks for itself and is the best evidence of its contents. 30. Denies each allegation in paragraphs 57 through 59 of the second amended complaint, and specifically denies that the RSA affects or changes the parties rights, obligations and/or duties under the Conversion Certificate. 31. Denies each allegation in paragraphs 60 through 63 of the second amended complaint. First Defense The second amended complaint fails to state a cause of action for collateral estoppel. Second Defense The second amended complaint fails to state a cause of action for equitable estoppel. Third Defense The Social Security Administration did not decide any issue against First Unum, or against any party in privity with First Unum. Fourth Defense A judgment in First Unum s favor in this action would not destroy or impair any rights or interests established by the SSDI proceeding. 5 5 of 7

6 Fifth Defense The issues determined in the SSDI proceeding are not identical to the issues in this action. Sixth Defense Plaintiff has not alleged, and cannot establish, that he prejudicially changed his position in reasonable reliance on First Unum s actions. To the contrary, he alleges that First Unum assisted him in obtaining SSDI benefits that he might not otherwise have received. Seventh Defense The Fourth Count does not state a claim for recovery of attorneys fees and litigationrelated costs and expenses. WHEREFORE, defendant, First Unum Life Insurance Company, demands judgment dismissing the second amended complaint and awarding such other and further relief as the Court deems fair. Dated November 28, 2016 BEGOS BROWN & GREEN LLP By S/ Patrick W. Begos Attorneys for First Unum Life Ins. Co Post Road Suite 205 Southport, CT (203) of 7

7 Verification PATRICK W. BEGOS, an attorney license to practice law in the courts of this State, affirms the following to be true under penalty of perjury I am a member of the firm of Begos Brown & Green LLP, attorneys for defendant, First Unum Life Insurance Company ( First Unum ). I am making this verification because First Unum is not in the county where I have my office. I have read the foregoing pleading, and the same is true to my knowledge (which knowledge is based on First Unum s books and records), except as to matters alleged on information and belief, and as to those matters, I believe it to be true. Dated November 28, 2016 S/Patrick W. Begos 7 7 of 7