11-856-cv
Veryzer v. American International Life

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1 .
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 11th day of April, two thousand twelve,

Present:    CHESTER J. STRAUB
            ROSEMARY S. POOLER,
                        Circuit Judges,
            EDWARD R. KORMAN,*
                        District Judge.
_____________________________________________________

ROBERT VERYZER, Ph.D.,

                                   Plaintiff-Appellee,

                             -v-                                              11-0856-cv

AMERICAN INTERNATIONAL LIFE ASSURANCE
COMPANY OF NEW YORK,

                                   Defendant-Appellant.**


Appearing for Appellant:           Robert P. Lesko, Wilson Elser Moskowitz Edelman & Dicker
      LLP,                             Florham Park, NJ

Appearing for Appellee:            Alan C. Milstein, Sherman, Silverstein, Kohl, Rose & Podolsky,
                                   P.A. Moorestown, NJ



        *
        The Honorable Edward R. Korman, United States District Court for the Eastern District
of New York, sitting by designation.
        **
             The Clerk of the Court is directed to amend the caption as shown above.
      Appeal from the United States District Court for the Southern District of New York
(Berman, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is VACATED and
REMANDED.

        American International Life Assurance Company (“AI Life”) appeals from the February
4, 2011 decision and order of the United States District Court for the Southern District of New
York (Berman, J.) denying its motion for summary judgment, granting Robert Veryzer’s cross-
motion for summary judgment, and directing AI Life to provide Veryzer disability benefits. See
Veryzer v. Am. Int’l Life Assurance Co. of N.Y., 765 F. Supp. 2d 422 (S.D.N.Y. 2011). We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

        We are skeptical of the district court’s conclusion that AI Life acted in an arbitrary and
capricious manner in denial of disability benefits beyond 24 months. However, we recognize
that the district court lacked the benefit of the decisions of the vaccine court, which were not part
of the administrative record before it. See, e.g., Veryzer v. Sec’y of Health & Human Servs., 100
Fed. Cl. 344 (Fed. Cl. 2011). Accordingly, we remand to the district court to decide whether to
exercise its discretion in considering material outside the record. See, e.g., Krauss v. Oxford
Health Plans, Inc., 517 F.3d 614, 631 (2d Cir. 2008). Alternatively, the district court may
exercise its discretion to remand to the administrator to consider additional evidence in making
its claims determination, allowing both parties to supplement the record as each sees fit. See
Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2d Cir. 1995).

       Accordingly, the judgment of the district court hereby is VACATED and REMANDED.
Each party shall bear its own costs.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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