year. Boston Mutual suggests that it was a relatively simple matter to ascertain how the vanishing premiums worked and how the downward spiral of the policy’s interest rate rendered the promise of vanishing premiums a nullity. Whether the plaintiff should have known that, and when, is quite another matter. We find the reasoning in Gaidon I persuasive in this regard: “Consumers vary in their level of sophistication and their ability to perceive the connection between a fluctuation in dividend/interest rates and a vanishing date, or to make the necessary arithmetic adjustments. The issue before us is not whether, as a matter of law, reasonable consumers would be misled in a material way, but whether that prospect is enough to create a question of fact. . . Gaidon I, 94 N.Y. 2d at 345 (<HOLDING>). On this record, and taking all reasonable
holding that plaintiffs opposition to summary judgment motion was sufficient to raise question of fact under new york consumer protection statute prohibiting deceptive insurance practices holding that a litigant who fails to raise an argument in opposition to a properly raised motion for summary judgment will not be permitted to raise that same argument later either in a motion for reconsideration or on appeal holding that claims raised for the first time in an opposition to a motion for summary judgment are not properly before a court holding that arguments not raised in opposition to a motion for summary judgment are waived holding that a plaintiff may not raise a new legal claim in response to summary judgment