Case Information

In the Matter of the Liquidation of MIDLAND INSURANCE COMPANY. PPG INDUSTRIES, INC., Appellant, v SUPERINTENDENT OF FINANCIAL SERVICES OF THE STATE OF NEW YORK, as Liquidator of MIDLAND INSURANCE COMPANY, Respondent.

Appellate Division of the Supreme Court of New York, First Department

December 29, 2016

145 A.D.3d 601 | 42 N.Y.S.3d 791

Friedman, J.P., Moskowitz, Webber, Kahn and Gesmer, JJ.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered on or about June 5, 2015, which confirmed a Special Referee's report disallowing claimant PPG Industries Inc.'s insurance claim filed against its insolvent insurer, Midland Insurance Company, unanimously affirmed, without costs.

The claim was properly disallowed, since it was contingent, and not absolute, on the final date for filing proofs of claim (see Insurance Law § 7433 [c]). The Trust Funding Agreement fixing PPG's funding obligation was unsigned and, thus, unenforceable by its terms. Moreover, numerous contractual conditions precedent were not met, including those that would trigger Midland Insurance Company's liability. Also, the Modified Third Amended Plan of Reorganization had not been confirmed by the bankruptcy court and/or district court; the Trust Funding Agreement had not been approved by the bankruptcy court and/or district court; the appellate remedies as to the confirmation of the Modified Third Amended Plan of Reorganization were not exhausted or expired; and the effective date of the Reorganization plan, as defined in that instrument, had not occurred.

We have considered claimant's remaining arguments and find them unavailing. Concur—Friedman, J.P., Moskowitz, Webber, Kahn and Gesmer, JJ.