Schwartz v. Aetna Life Insurance & Annuity Co.

Appellate Division of the Supreme Court of New York

Schwartz v. Aetna Life Insurance & Annuity Co.

214 A.D.2d 975, 626 N.Y.S.2d 632, 1995 N.Y. App. Div. LEXIS 6712

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

DecidedApril 28, 1995

StatusPublished

Cited by2 cases

This text of 214 A.D.2d 975 (Schwartz v. Aetna Life Insurance & Annuity Co.) 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.

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Schwartz v. Aetna Life Insurance & Annuity Co., 214 A.D.2d 975, 626 N.Y.S.2d 632, 1995 N.Y. App. Div. LEXIS 6712 (N.Y. Ct. App. 1995).

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Order affirmed with costs. Memorandum: Aetna Life Insurance and Annuity Company (defendant) argues that Supreme Court erred in denying its motion for summary judgment and in sua sponte granting summary judgment to plaintiff. Each party submitted unsworn medical records in support of its position; neither party has objected to the admissibility of the medical records submitted by the other. Thus, the court properly considered those unsworn medical records in determining that plaintiff was entitled to summary judgment (see, Borchardt v New York Life Ins. Co., 102 AD2d 465, 467-468, affd 63 NY2d 1000).

The dissent argues that summary judgment should not have been granted to plaintiff, a non-moving party, because a search of the record reveals the existence of a potentially meritorious Statute of Limitations’ defense. That argument was not raised by defendant in its brief on appeal, however, and we therefore do not consider it.

All concur except Lawton, J., who dissents in part and votes to modify in the following Memorandum.

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Order affirmed with costs. Memorandum: Aetna Life Insurance and Annuity Company (defendant) argues that Supreme Court erred in denying its motion for summary judgment and in sua sponte granting summary judgment to plaintiff. Each party submitted unsworn medical records in support of its position; neither party has objected to the admissibility of the medical records submitted by the other. Thus, the court properly considered those unsworn medical records in determining that plaintiff was entitled to summary judgment (see, Borchardt v New York Life Ins. Co., 102 AD2d 465, 467-468, affd 63 NY2d 1000).

The dissent argues that summary judgment should not have been granted to plaintiff, a non-moving party, because a search of the record reveals the existence of a potentially meritorious Statute of Limitations’ defense. That argument was not raised by defendant in its brief on appeal, however, and we therefore do not consider it.

All concur except Lawton, J., who dissents in part and votes to modify in the following Memorandum.

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214 A.D.2d 975, 626 N.Y.S.2d 632, 1995 N.Y. App. Div. LEXIS 6712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-aetna-life-insurance-annuity-co-nyappdiv-1995.

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