Leamy v. Berkshire Life Insurance

Appellate Division of the Supreme Court of New York

Leamy v. Berkshire Life Insurance

46 A.D.2d 965, 362 N.Y.S.2d 60, 1974 N.Y. App. Div. LEXIS 3315

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

DecidedDecember 18, 1974

StatusPublished

Cited by2 cases

This text of 46 A.D.2d 965 (Leamy v. Berkshire Life Insurance) 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

Leamy v. Berkshire Life Insurance, 46 A.D.2d 965, 362 N.Y.S.2d 60, 1974 N.Y. App. Div. LEXIS 3315 (N.Y. Ct. App. 1974).

Pincite

Opinion

— Appeal from a judgment of the Supreme Court at Trial Term, entered January 10, 1974 in Otsego County, upon a verdict in favor of the plaintiff in Action Ho. 2. As the beneficiary on a $40,000 life insurance policy allegedly purchased by Robert J. Leamy, her now deceased husband, the plaintiff was awarded judgment herein in the sum of $54,537.98, including interest, unearned premium, and costs and disbursements. How, [966]*966the defendant insurance company challenges this award on appeal and argues, inter alia, that it should not be liable under the policy which should be rescinded because of material misrepresentations made by Mr. Leamy. We agree with the defendant. It is uncontested that in 1962 Mr. Leamy was hospitalized for over two weeks as a result of severe dizziness, and yet, on his application for insurance dated November 15, 1968, he answered “ no ” to a question as to whether he had ever had or been treated for dizzy spells. Furthermore, during the period between December 20, 1968 and January 20, 1969, he signed an amendment to his application which stated that “no changes have occurred” in the general state of his health as set out in the application, even though he had been hospitalized on December 19, 1968 following a seizure which resulted in the left side of his face seeming “to pull in opposite directions” and his blacking out. By these failures to disclose, Mr. Leamy deprived the insurance company of “freedom of choice in determining whether to accept or reject the risk.” (Vander Veer v. Continental Gas. Co., 34 N Y 2d 50, 53). Accordingly, we hold, as a matter of law, that he made misrepresentations of his health to the defendant which were material (Insurance Law, § 149; Vander Veer v. Continental Cas. Co., supra-, Wageman v. Metropolitan Life Ins. Co., 24 A D 2d 67, affd. 18 N Y 2d 777) and, therefore, the judgment of the trial court must be reversed. Judgment reversed, on the law and the facts, and complaint dismissed, with the direction that the premium paid by the deceased with interest thereon be refunded to the plaintiff, without costs. Staley, Jr., J. P., Greenblott, Sweeney, Kane and Main, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

— Appeal from a judgment of the Supreme Court at Trial Term, entered January 10, 1974 in Otsego County, upon a verdict in favor of the plaintiff in Action Ho. 2. As the beneficiary on a $40,000 life insurance policy allegedly purchased by Robert J. Leamy, her now deceased husband, the plaintiff was awarded judgment herein in the sum of $54,537.98, including interest, unearned premium, and costs and disbursements. How, [966]*966the defendant insurance company challenges this award on appeal and argues, inter alia, that it should not be liable under the policy which should be rescinded because of material misrepresentations made by Mr. Leamy. We agree with the defendant. It is uncontested that in 1962 Mr. Leamy was hospitalized for over two weeks as a result of severe dizziness, and yet, on his application for insurance dated November 15, 1968, he answered “ no ” to a question as to whether he had ever had or been treated for dizzy spells. Furthermore, during the period between December 20, 1968 and January 20, 1969, he signed an amendment to his application which stated that “no changes have occurred” in the general state of his health as set out in the application, even though he had been hospitalized on December 19, 1968 following a seizure which resulted in the left side of his face seeming “to pull in opposite directions” and his blacking out. By these failures to disclose, Mr. Leamy deprived the insurance company of “freedom of choice in determining whether to accept or reject the risk.” (Vander Veer v. Continental Gas. Co., 34 N Y 2d 50, 53). Accordingly, we hold, as a matter of law, that he made misrepresentations of his health to the defendant which were material (Insurance Law, § 149; Vander Veer v. Continental Cas. Co., supra-, Wageman v. Metropolitan Life Ins. Co., 24 A D 2d 67, affd. 18 N Y 2d 777) and, therefore, the judgment of the trial court must be reversed. Judgment reversed, on the law and the facts, and complaint dismissed, with the direction that the premium paid by the deceased with interest thereon be refunded to the plaintiff, without costs. Staley, Jr., J. P., Greenblott, Sweeney, Kane and Main, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

46 A.D.2d 965, 362 N.Y.S.2d 60, 1974 N.Y. App. Div. LEXIS 3315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leamy-v-berkshire-life-insurance-nyappdiv-1974.

Opinion

Related

Cite This Page — Counsel Stack