Judge Swain
http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=118378
ON JAN.1, 1977, and Jan. 1, 1979, plaintiff bought policies from MONY Life Insurance Co. During his ownership, MONY established a policy surrender procedure under which it placed funds in a “MONY Market” checking account in the former policyholder’s name. Plaintiff liquidated the account on Feb. 11, 2005, by writing a check for its full amount. The amended complaint in his putative class action alleging contractual and fiduciary duty breach, and unjust enrichment, sought damages measured by the difference between the interest rate paid by the account and rates available on similar investments. The court summarily dismissed his complaint. He proffered no evidence of a mutual agreement or understanding that delivery of a check was the only way MONY could settle payment on a policy nor showed the “account” method so materially deviated from any reasonable expectations associated with payment by check as to constitute contract breach. Also, to there not being a fiduciary relationship between the parties before plaintiff’s election to surrender his policies, plaintiff presented no evidence MONY exercised investment decisions over his money once it placed plaintiff’s surrender proceeds in the account.
