Carlin v. Equitable Life Assurance Society of United States

Appellate Division of the Supreme Court of New York

Carlin v. Equitable Life Assurance Society of United States

65 A.D.2d 614, 409 N.Y.S.2d 550, 1978 N.Y. App. Div. LEXIS 13303

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 30, 1978

StatusPublished

This text of 65 A.D.2d 614 (Carlin v. Equitable Life Assurance Society of United States) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carlin v. Equitable Life Assurance Society of United States, 65 A.D.2d 614, 409 N.Y.S.2d 550, 1978 N.Y. App. Div. LEXIS 13303 (N.Y. Ct. App. 1978).

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Opinion

—In an action to recover the amounts withheld on certain life insurance policies on account of loans which were made thereon, defendant appeals from so much of an order of the Supreme Court, Nassau County, entered April 4, 1978, as denied its motion for partial summary judgment on the ground that the Statute of Limitations (CPLR 213, subd 2) barred plaintiff’s action with respect to several of the loans. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and motion granted. Plaintiff was the beneficiary of certain life insurance policies taken out by her husband. She became the owner of those policies after they were assigned to her. The complaint alleges that the policies decreased in cash value due to a series of loans which were taken out against them after she became the owner and allegedly without her authorization or consent. On the death of the insured, the defendant, pursuant to express provisions of the policies in question, set off the amounts of the outstanding loans against the proceeds payable to plaintiff as beneficiary. Plaintiff then instituted this action to recover that portion of the proceeds she claims was wrongfully withheld. Plaintiff attacks the loan transactions, which were made in strict accordance with the contract terms, in her role as owner of the policies. Under the facts in this case, plaintiff has no standing to complain about the, loan transactions in her status as beneficiary (see Fankuchen v Fankuchen, 63 Mise 2d 348). When the loans on plaintiff’s policies were made, there was an immediate decrease in the cash surrender value of the policies (see 30 NY Jur, Insurance, § 865). It is this undesired decline in value which comprises her damages. Hence, this is a case where the breach, if any, and the resulting damages occurred simultaneously (cf. Ryan Ready Mixed Concrete Corp. v Coons, 25 AD2d 530). Plaintiff’s cause of action thus accrued, and the statutory period began to run, when each of the complained of loan transactions was made. This is not a case where the running of the statute was suspended until the discovery of the wrong (see Shaw v Union Mut. Life Ins. Co. of N. Y., 91 Mise 2d 64; cf. Schiffman v Hospital for Joint Diseases, 36 AD2d 31). Martuscello, J. P., Latham, Damiani and Titone, JJ., concur.

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—In an action to recover the amounts withheld on certain life insurance policies on account of loans which were made thereon, defendant appeals from so much of an order of the Supreme Court, Nassau County, entered April 4, 1978, as denied its motion for partial summary judgment on the ground that the Statute of Limitations (CPLR 213, subd 2) barred plaintiff’s action with respect to several of the loans. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and motion granted. Plaintiff was the beneficiary of certain life insurance policies taken out by her husband. She became the owner of those policies after they were assigned to her. The complaint alleges that the policies decreased in cash value due to a series of loans which were taken out against them after she became the owner and allegedly without her authorization or consent. On the death of the insured, the defendant, pursuant to express provisions of the policies in question, set off the amounts of the outstanding loans against the proceeds payable to plaintiff as beneficiary. Plaintiff then instituted this action to recover that portion of the proceeds she claims was wrongfully withheld. Plaintiff attacks the loan transactions, which were made in strict accordance with the contract terms, in her role as owner of the policies. Under the facts in this case, plaintiff has no standing to complain about the, loan transactions in her status as beneficiary (see Fankuchen v Fankuchen, 63 Mise 2d 348). When the loans on plaintiff’s policies were made, there was an immediate decrease in the cash surrender value of the policies (see 30 NY Jur, Insurance, § 865). It is this undesired decline in value which comprises her damages. Hence, this is a case where the breach, if any, and the resulting damages occurred simultaneously (cf. Ryan Ready Mixed Concrete Corp. v Coons, 25 AD2d 530). Plaintiff’s cause of action thus accrued, and the statutory period began to run, when each of the complained of loan transactions was made. This is not a case where the running of the statute was suspended until the discovery of the wrong (see Shaw v Union Mut. Life Ins. Co. of N. Y., 91 Mise 2d 64; cf. Schiffman v Hospital for Joint Diseases, 36 AD2d 31). Martuscello, J. P., Latham, Damiani and Titone, JJ., concur.

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Bluebook (online)

65 A.D.2d 614, 409 N.Y.S.2d 550, 1978 N.Y. App. Div. LEXIS 13303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlin-v-equitable-life-assurance-society-of-united-states-nyappdiv-1978.

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