October 29, 2002.
Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered June 7, 2001, in an action by policyholders challenging the validity of acts taken under Insurance Law § 7312 to convert defendant insurance company from a mutual life insurer to a stock life insurer, dismissing the complaint, unanimously affirmed, without costs.
BARRY A. WEPRIN, for plaintiffs-appellants.
JAMES P. SMITH III ROBERT H. EASTON, for defendants-respondents.
Before: Mazzarelli, J.P., Andrias, Buckley, Marlow, JJ.
Insofar as brought against the Superintendent of Insurance, plaintiffs' claim, although brought in the form of a declaratory judgment action, merely challenges the Superintendent's approval of the insurance company defendants' demutualization plan as violative of Insurance Law § 7312, and was thus properly dismissed as barred by the four-month statute of limitations applicable to article 78 proceedings (see Butler v. Wing, 275 A.D.2d 273, 276, lv denied 95 N.Y.2d 770; Rosenthal v. City of New York, 283 A.D.2d 156, 158, lv dismissed 97 N.Y.2d 654). Insurance Law § 7312(t)(1), which provides a one-year limitations period for any "action" challenging the validity of or arising out of acts taken under a demutualization plan, does not mention article 78 proceedings, and therefore should not be construed to provide a one-year limitations period alternative to the four-month period. As against defendant insurance company and its parent, there is no merit to plaintiffs' claim that section 7312, which requires the demutualization plan be in the best interest of both the mutual insurer and its policyholders, created a fiduciary relationship between the parties. Plaintiffs' cause of action for breach of contract was properly dismissed for failure to identify the policy terms allegedly breached. We have considered plaintiff's claims of various violations of the statute by the insurance company defendants, and, to the extent such claims are not an indirect challenge to the Superintendent's determination, plaintiffs' allegations are flatly contradicted by the documentary evidence, and were properly held insufficient to state a cause of action.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.