Chickering v. Colonial Life Insurance Co. of America

Appellate Division of the Supreme Court of New York

Chickering v. Colonial Life Insurance Co. of America

51 A.D.2d 566, 378 N.Y.S.2d 475, 1976 N.Y. App. Div. LEXIS 10838

Appellate Division of the Supreme Court of the State of New York·Decided January 26, 1976·Published·Cited by 7 cases

Opinion

In anaction upon a life insurance policy, defendant appeals from an order of the Supreme Court, Dutchess County, dated September 24, 1975, which denied its motion for summary judgment. Order reversed, on the law, without costs, and motion granted. Defendant’s moving affidavits reveal that, at the time of the insured’s death, the policy [567] in question had lapsed due to a default in payment of a specific premium. The only affidavit submitted in opposition was that of plaintiffs attorney. An opposing affidavit by an attorney without personal knowledge of the facts, however, has no probative value and should be disregarded (Di Sabato v Soffes, 9 AD2d 297). In addition, the record on this appeal indicates that the only evidence which plaintiff might introduce at the trial is such that impermissible inferences would have to be drawn therefrom in order for it to have any effect (see Ruppert v Brooklyn Hgts. R.R. Co., 154 NY 90; Grawunder v Beth Israel Hosp. Assn., 242 App Div 56, affd 266 NY 605; Olsen v St. Margaret of Scotland R.C. Church, 21 AD2d 827). Consequently, such evidence, by itself, was insufficient to defeat summary judgment (see Friese v Baird, 36 AD2d 727; cf. Phillips v Kantor & Co., 31 NY2d 307) and defendant’s motion should have been granted. It would also appear that the action is time-barred. Gulotta, P. J., Latham, Hargett, Damiani and Christ, JJ., concur.

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In anaction upon a life insurance policy, defendant appeals from an order of the Supreme Court, Dutchess County, dated September 24, 1975, which denied its motion for summary judgment. Order reversed, on the law, without costs, and motion granted. Defendant’s moving affidavits reveal that, at the time of the insured’s death, the policy [567] in question had lapsed due to a default in payment of a specific premium. The only affidavit submitted in opposition was that of plaintiffs attorney. An opposing affidavit by an attorney without personal knowledge of the facts, however, has no probative value and should be disregarded (Di Sabato v Soffes, 9 AD2d 297). In addition, the record on this appeal indicates that the only evidence which plaintiff might introduce at the trial is such that impermissible inferences would have to be drawn therefrom in order for it to have any effect (see Ruppert v Brooklyn Hgts. R.R. Co., 154 NY 90; Grawunder v Beth Israel Hosp. Assn., 242 App Div 56, affd 266 NY 605; Olsen v St. Margaret of Scotland R.C. Church, 21 AD2d 827). Consequently, such evidence, by itself, was insufficient to defeat summary judgment (see Friese v Baird, 36 AD2d 727; cf. Phillips v Kantor & Co., 31 NY2d 307) and defendant’s motion should have been granted. It would also appear that the action is time-barred. Gulotta, P. J., Latham, Hargett, Damiani and Christ, JJ., concur.

Chickering v. Colonial Life Insurance Co. of America, 51 A.D.2d 566, 378 N.Y.S.2d 475, 1976 N.Y. App. Div. LEXIS 10838 (N.Y. Ct. App. 1976).

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Opinion

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