*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 736

CA 11-02384

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ. JOHN CHRISTODOULIDES, M.D.,

PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER FIRST UNUM LIFE INSURANCE COMPANY,

DEFENDANT,

AND LIFE INSURANCE COMPANY OF BOSTON AND

NEW YORK, DEFENDANT-APPELLANT. (APPEAL NO. 2.)

PHILLIPS LYTLE LLP, BUFFALO (PAUL K. STECKER OF COUNSEL), FOR DEFENDANT-APPELLANT.

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (HUGH C. CARLIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT. Appeal from a judgment of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered November 17, 2011. The judgment awarded plaintiff money damages against defendant Life Insurance Company of Boston and New York.

It is hereby ORDERED that the judgment so appealed from is unanimously vacated and the same order as in Christodoulides v First Unum Life Ins. Co. ([appeal No. 1] ___ AD3d ___ [June 15, 2012]) is further modified on the law by denying that part of plaintiff’s cross motion against defendant Life Insurance Company of Boston and New York, and by vacating the declaration and the award of damages against that defendant, and as further modified the order is affirmed without costs.

Same Memorandum as in Christodoulides v First Unum Life Ins. Co. ([appeal No. 1] ___ AD3d ___ [June 15, 2012]).

Entered: June 15, 2012 Frances E. Cafarell

Clerk of the Court