Schiano v. First Unum Life Insurance

41 A.D.3d 577, 838 N.Y.S.2d 588

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 2007
• Status: Published

Opinion

In an action to recover benefits under certain disability insurance policies, the plaintiff appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated July 10, 2006, which granted the defendants’ motion for summary judgment dismissing the complaint, and denied his cross motion for summary judgment.

Ordered that the order is affirmed, with costs.

The defendants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the plaintiff left his employment due to his planned retirement, as opposed to his hearing disability, and thus he was not totally disabled within the meaning of the subject policies (see Kunstenaar v Connecticut Gen. Life Ins. Co., 902 F2d 181 [1990]; Voyatzis v New England Mut. Life Ins. Co., 80 AD2d 508 [1981]; Anthony v Metropolitan Life Ins. Co., 54 AD2d 866 [1976]). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Court correctly granted the defendants’ motion for summary judgment dismissing the complaint, and denied the plaintiffs cross motion for summary judgment.

The plaintiff’s remaining contentions are without merit. Miller, J.P., Ritter, Santucci and Florio, JJ., concur.