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NORMA SCHMUCKLER v. COMMERCIAL TRAVELERS MUTUAL ACCIDENT ASSOCIATION (04/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


April 21, 1969

NORMA SCHMUCKLER, RESPONDENT,
v.
COMMERCIAL TRAVELERS MUTUAL ACCIDENT ASSOCIATION, APPELLANT

Order of the Supreme Court, Kings County, dated September 20, 1968, reversed, on the law, with $10 costs and disbursements; defendant's motion for summary judgment granted; and plaintiff's cross motion to dismiss defendant's first affirmative defense denied. This action to recover upon a contract of insurance was commenced in July, 1967.

Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.

The complaint alleges that defendant, a domestic mutual insurance association, insured plaintiff's husband in 1937 in the sum of $5,000 against the accidental loss of his life and that, though he died on June 30, 1963 as the result of an accident, defendant has refused payment of that sum to plaintiff, the insured's beneficiary. The answer admits the insurance but alleges that prosecution of the action is barred by the insurance policy's provision prohibiting the commencement of the action more than 12 months after the date of the accident causing the insured's loss of life. In our opinion, the legality of the limitation period thus provided was determinable by the law as it existed at the time of the issuance of the policy and hence prosecution of the action is barred (Shichman v. Commercial Travelers Mut. Acc. Assn., 179 Misc. 761, 764, affd. 267 App. Div. 389; Nigro v. Commercial Travelers Mut. Acc. Assn., 268 App. Div. 442, mot. for lv. to app. den. 294 N Y 643). If, as plaintiff argues, section 164 (subd. 3, par. [A], cl. [11]) of the Insurance Law is applicable to the policy, her action is nevertheless time-barred (see Insurance Law, § 143, subd. 1; § 164, subd. 3, par. [B], cl. [9]).

19690421

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