Edgar A. Levy Leasing Co. v. Wishner

Frankenthaler, J. The exemption provided for in section 55-a of the Insurance Law is expressly made inapplicable to a case of an assignment in fraud of creditors. Wittman v. Littlefield (142 Misc. 916; affd., 235 App. Div. 831) is distinguishable. The complaint in that case alleged an assignment in fraud of creditors. As a motion to dismiss defenses for insufficiency searches the record, the dismissal in that case of a number of the defenses indicates that the complaint was deemed sufficient notwithstanding the exemption authorized by section 55-a of the Insurance Law. All that was decided in the Wittman case was that disability payments are included within the term “ proceeds and avails ” of the policy. This is confirmed by the statement of the court at Special Term that the only issues before it were “ the validity of the assignment and the effect of section 55-a.” As the plaintiff, here, has established prima facie that the policy was assigned in fraud of creditors, this motion for a temporary injunction is granted. Settle order.