Mitchell BENESOWITZ, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Plan Administrator of Honeywell Long Term Disability Income Plan, and Honeywell Long Term Disability Income Plan, Defendants-Appellees, 514 F.3d 174

PER CURIAM: Plaintiff Mitchell Benesowitz appeals a judgment of the United States District Court for the Eastern District of New York (Thomas C. Platt, Judge) dismissing his claim for long-term disability (“LTD”) benefits. We assume familiarity with the underlying facts and procedural history, which are provided at Benesowitz v. Metropolitan Life Insurance Company, 471 F.3d 348, 350-51 (2d Cir.2006) (“Benesowitz I ”), certified question answered by Benesowitz v. Metropolitan Life Insurance Company, 8 N.Y.3d 661, 839 N.Y.S.2d 706, 870 N.E.2d 1136 (2007) (“Benesowitz II”).

In Benesowitz I, we certified the following question to the New York Court of Appeals: “Whether New York Insurance Law § 3234(a)(2) means that (1) a policy may impose a twelve-month waiting period during which no benefits -will be paid for disability stemming from a pre-existing condition and arising in the first twelve months of coverage or (2) a policy may lawfully include a permanent absolute bar to coverage of disabilities resulting from pre-existing conditions that trigger disability within the first twelve months of the employee’s coverage.” Benesowitz I, 471 F.3d at 353.

The New York Court of Appeals held that the statute was properly interpreted to allow “insurers to toll benefits during the first [twelve] months of coverage, but does not permit them to impose an absolute bar to coverage for disabilities stemming from preexisting conditions and arising during that [twelve]month period.” Benesowitz II, 839 N.Y.S.2d at 707-08, 870 N.E.2d 1136. The New York Court of Appeals’ decision requires us to vacate the district court’s judgment, which was premised on the district court’s conclusion that a permanent bar could be imposed. See Benesowitz v. Metro. Life Ins.

Co., 386 F.Supp.2d 132, 136-37 (E.D.NY.2005). Benesowitz also asks that we award him attorney’s fees and pre-judgment interest. The Employee Retirement Income Security Act of 1974 (“ERISA”) authorizes “the court in its discretion [to] allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). Pre-judgment interest is also available in the court’s discretion. See Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130, 139 (2d Cir.2000).

Because the district court determined that Benesowitz should not prevail, it had no occasion to consider his entitlement to attorney’s fees or prejudgment interest. We therefore remand in order that the district court may make these determinations in the first instance. See Connors v. Conn. Gen. Life Ins. Co., 272 F.3d 127, 137 (2d Cir.2001) (declining to address attorney’s fees or prejudgment interest where the district court had not done so).

CONCLUSION Based on the New York Court of Appeals’ answer to our certified question, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion.