

Matter of Liquidation of Midland Ins. Co. (2016 NY Slip Op 08610)





Matter of Liquidation of Midland Ins. Co.


2016 NY Slip Op 08610


Decided on December 22, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on December 22, 2016

Friedman, J.P., Moskowitz, Webber, Kahn, Gesmer, JJ.


2540N 41294/86

[*1] In re Liquidation of Midland Insurance Company
PPG Industries, Inc., Claimant-Appellant,
vThe Superintendent of Financial Services of the State of New York as Liquidator of Midland Insurance Company, Liquidator-Respondent.


K & L Gates LLP, New York (Priya Chadha of counsel), for appellant.
Simpson Thacher & Bartlett LLP, New York (Andrew T. Frankel of counsel), for respondent.

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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 22, 2016
DEPUTY CLERK


