Opinion
Case No. 12-CV-6397 (FB) (RML)
11-02-2017
BENZION LEBOVITS, as Trustee of the Weberman Family Irrevocable Life Insurance Trust, Plaintiff, v. PHL VARIABLE INSURANCE COMPANY, Defendant.
Appearances: For the Plaintiff: IRA S. LIPSIUS, ESQ. Lipsius-Benhaim Law LLP 80-02 Kew Gardens Road, Suite 1030 Kew Gardens, NY 11415 For the Defendant: PATRICK J. FEELEY, ESQ. Dorsey & Whitney LLP 51 West 52nd Street New York, NY 10019
MEMORANDUM AND ORDER Appearances:
For the Plaintiff:
IRA S. LIPSIUS, ESQ.
Lipsius-Benhaim Law LLP
80-02 Kew Gardens Road, Suite 1030
Kew Gardens, NY 11415 For the Defendant:
PATRICK J. FEELEY, ESQ.
Dorsey & Whitney LLP
51 West 52nd Street
New York, NY 10019 BLOCK, Senior District Judge :
The joint motion to vacate the Court's memorandum and order of August 9, 2016, is denied because the parties have not shown extraordinary circumstances justifying vacatur. See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18 (1994). Whether vacated or not, the memorandum and order remains only persuasive authority, the opinion of a single district judge,
At an informal conference, defendant's counsel alluded to the possible collateral estoppel effect of the order in a case before Judge Ross. That concern does not present an extraordinary circumstance because collateral estoppel "precludes relitigation of issues actually litigated and necessary to the outcome of the first action." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979) (emphasis added). This case was dismissed based solely on plaintiff's failure to tender the required premium; the issues addressed in the August 9th memorandum and order were not necessary to that result. And even if the order had any preclusive effect, it would have retained that effect had defendant succeeded on appeal instead of agreeing to settle.
SO ORDERED.
/S/ Frederic Block
FREDERIC BLOCK
Senior United States District Judge Brooklyn, New York
November 2, 2017