Ferrainolo v. Prudential Insurance Co. of America

Appellate Division of the Supreme Court of New York

Ferrainolo v. Prudential Insurance Co. of America

15 A.D.2d 718, 223 N.Y.S.2d 261, 1962 N.Y. App. Div. LEXIS 12221

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

DecidedJanuary 4, 1962

StatusPublished

This text of 15 A.D.2d 718 (Ferrainolo v. Prudential Insurance Co. of America) 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

Ferrainolo v. Prudential Insurance Co. of America, 15 A.D.2d 718, 223 N.Y.S.2d 261, 1962 N.Y. App. Div. LEXIS 12221 (N.Y. Ct. App. 1962).

Pincite

Opinion

Memorandum:

At the conclusion of the testimony each party moved for a directed verdict- and the Trial Justice directed a verdict in favor of- plaintiff- on the theory that he. would have been required to set aside a contrary verdict for legal insufficiency. This ruling, of course, presupposed that there were no material issues of fact because, if there were,, both motions should have been denied, and the- case submitted to the jury (Civ. Prac. Act, § 457-a, Subd. 2). The sole question- before- the court was whether, through the fraud of the agents of the defendant, plaintiff had been induced to sign a release. She admitted signing the release and accepting a return of the premiums that had been paid on the policy. The plaintiff’s testimony as to fraud Was undisputed but the release was in evidence and she was an interested party (Noseworthy v. City of New York, 298 N. Y. 76, 79, 80). Thus there Were questions of fact which should have been submitted to the jury (6 CarmodyWait, New York Practice, pp. 713, 714). The ease of Woodson v. New York City Housing Auth. (10 N Y 2d 30) is not controlling here. In that ease there was no evidence of any kind favorable to the defendant. In the present ease the release and receipt were in evidence and the burden was upon the plaintiff to establish fraud by clear and convincing evidence. (Appeal by defendant from judgment of Monroe Trial Term granting a motion for a directed verdict at the close of plaintiff’s case, in an action by the beneficiary to recover the double indemnity death benefit under a life insurance policy.) Present— Williams, P. J., Goldman, Halpern, McClusky and Henry, JJ.

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Memorandum:

At the conclusion of the testimony each party moved for a directed verdict- and the Trial Justice directed a verdict in favor of- plaintiff- on the theory that he. would have been required to set aside a contrary verdict for legal insufficiency. This ruling, of course, presupposed that there were no material issues of fact because, if there were,, both motions should have been denied, and the- case submitted to the jury (Civ. Prac. Act, § 457-a, Subd. 2). The sole question- before- the court was whether, through the fraud of the agents of the defendant, plaintiff had been induced to sign a release. She admitted signing the release and accepting a return of the premiums that had been paid on the policy. The plaintiff’s testimony as to fraud Was undisputed but the release was in evidence and she was an interested party (Noseworthy v. City of New York, 298 N. Y. 76, 79, 80). Thus there Were questions of fact which should have been submitted to the jury (6 CarmodyWait, New York Practice, pp. 713, 714). The ease of Woodson v. New York City Housing Auth. (10 N Y 2d 30) is not controlling here. In that ease there was no evidence of any kind favorable to the defendant. In the present ease the release and receipt were in evidence and the burden was upon the plaintiff to establish fraud by clear and convincing evidence. (Appeal by defendant from judgment of Monroe Trial Term granting a motion for a directed verdict at the close of plaintiff’s case, in an action by the beneficiary to recover the double indemnity death benefit under a life insurance policy.) Present— Williams, P. J., Goldman, Halpern, McClusky and Henry, JJ.

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Bluebook (online)

15 A.D.2d 718, 223 N.Y.S.2d 261, 1962 N.Y. App. Div. LEXIS 12221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrainolo-v-prudential-insurance-co-of-america-nyappdiv-1962.

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