Court Grants Motion To Strike Interrogatory Responses Concerning Calculations of Damages Foreclosed By Prior Court Rulings

Posted: April 14, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Category Damages

Court Grants Motion To Strike Interrogatory Responses Concerning Calculations of Damages Foreclosed By Prior Court Rulings

On March 3, 2025, Justice Andrea Masley granted, in part, a motion to strike interrogatory responses that included calculations of damages foreclosed by prior court rulings. In Richard Hobish, et al., v. AXA Equitable life Insurance Company, Index No. 650315/2017, Defendant AXA Equitable Life Insurance Company asked the Court to strike the plaintiff’s damages calculations on the grounds that they were unsupported by the allegations and prior Court rulings, affirmed by the Appellate Division, had rejected the plaintiff’s theories of consequential and restitutionary damages. The Court granted the motion in part, explaining:

Equitable argues that Hobish’s two new damages theories are wrong. First, Equitable insists that a refund of $501,116.46 for all premiums paid under the Policy since 2007 to July 2016, when Hobish surrendered the Policy, is not available because there was no alleged breach during that time and the Policy was in effect. The court agrees. Indeed, Equitable’s alleged breach would not have occurred until Equitable notified Hobish of the rate hike in October 2015.

Second, Equitable attacks Hobish’s damages for $416,000 representing COI charges that plaintiffs would have paid had they not surrendered the Policy in July 2016 or the cost of replacement insurance as speculative and thus impermissible. The court agrees based on the Court of Appeals decision. Hobish failed to follow the proper procedure to recover the cost of replacement insurance since Hobish failed to purchase such replacement insurance; it terminated the Policy and collected $412,688.01 instead. To the extent that Hobish seeks the difference between what it would have paid and should have paid for the life of the Policy,8 the court agrees that Hobish cannot recover damages for amounts he did not pay because he terminated the Policy.

The attorneys at Schlam Stone & Dolan frequently counsel clients concerning the availability and calculation of damages in litigation. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.