Cook v. Aetna Life Insurance Co.

166 A.D.2d 895

Opinion

Order insofar as appealed from unanimously reversed on the law without costs and cross motion granted. Memorandum: The court erred in denying plaintiffs cross motion for summary judgment seeking the proceeds of a $20,000 life insurance policy issued by Aetna Life Insurance Company. Plaintiff and the insured were divorced in 1978, and the insured thereafter married defendant, who also claimed entitlement to the policy proceeds. Because Aetna paid the policy proceeds into court, the policy requirements concerning change of beneficiary were waived and the intent of the insured, based on equitable considerations, controls (see, Cable v Prudential Ins. Co., 89 AD2d 636; Considine v Considine, 255 App Div 876). That intent must be demonstrated by proof of affirmative acts to effectuate the change (see, Hunnell v Hunnell, 45 AD2d 521, affd 37 NY2d 931). The only proof of intent offered by defendant was the insured’s alleged statement to her that he had provided for her and the children "in his insurance policy.” Because defendant failed to offer any proof of an affirmative act by the insured to change his beneficiary, the court should have granted plaintiff’s cross motion (see, Hunnell v Hunnell, supra; cf., Cable v Prudential Ins. Co., supra; Considine v Considine, supra). (Appeal from order of Supreme Court, Onondaga County, Miller, J.—summary judgment.) Present—Denman, J. P., Boomer, Pine, Balio and Lawton, JJ.