Abamont & Associates, Garden City, N.Y. (Thomas J. Youllar of counsel), for appellant.
Piazza, D'Addario & Frumin, Brooklyn, N.Y. (Lucille Frumin of counsel), for respondent.
PETER B. SKELOS, J.P., PLUMMER E. LOTT, JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX, JJ.
DECISION & ORDER
In an action to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Asher, J.), dated May 17, 2012, as denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
In September 2003, the decedent applied for a life insurance policy (hereinafter the subject policy) from the defendant, Metropolitan Life Insurance Company, through its financial services representative, Gregg Pajak. The decedent designated his wife, the plaintiff, as the beneficiary. In October 2003, the defendant informed the decedent that the underwriting process revealed that he did not qualify for the "preferred" rating and that he would be required to pay a higher premium for the "standard" rating. The defendant issued the subject policy on October 2, 2003. The policy contained a provision providing the insured with a right to cancel the policy and obtain a refund of any premiums already paid.
The decedent died on January 11, 2004, and the plaintiff sought to recover under the subject policy. The defendant declined to pay the plaintiff the death benefit under the subject policy. According to the defendant, the decedent cancelled the subject policy in December 2003 due to the higher premium and was refunded the premium payments made for September through November. Subsequently, the plaintiff commenced this action, alleging, inter alia, that the subject policy was in full force and effect at the time of the decedent's death, and that the defendant breached the subject policy by failing to pay her the death benefit.
The defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that the decedent cancelled the subject policy prior to his death, by oral notification to Gregg Pajak, the defendant's authorized agent (see Matter of Country-Wide Ins. Co. v Wagoner, 57 A.D.2d 498, 503, revd on other grounds 45 N.Y.2d 581; Gately-Haire Co. v Niagara Fire Ins. Co. of N.Y., 221 NY 162, 167; Crown Point Iron Co. v Aetna Ins. Co., 127 NY 608, 614; see also Zachariades v Transcontinental Ins. Co. [ CNA ], 1 A.D.3d 509, 509).
Contrary to the defendant's contention, the Supreme Court properly considered evidence in the plaintiff's deposition testimony and affidavit submitted in opposition to its motion for summary judgment regarding the decedent's intentions to accept the subject policy regardless of the higher premium (see Lauriello v Gallotta, 59 A.D.3d 497, 498; Estate of Essig v 5670 58 St. Holding Corp., 50 A.D.3d 948, 949; Coury v Arcuri, 262 A.D.2d 268, 268). We conclude, however, that the plaintiff's evidence did not raise a triable issue of fact as to whether the subject policy remained in effect at the time of the decedent's death (see generally Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). Further, the plaintiff's contention, in effect, that the subject policy remained in effect because no notice of cancellation was received prior to the decedent's death is without merit. As the cancellation was initiated by the decedent-insured, the defendant was not required to provide notice in order to effectuate cancellation of the subject policy (see Bellina v Bellina, 105 A.D.2d 1074, 1074; Matter of Country-Wide Ins. Co. v Wagoner, 57 A.D.2d at 503; see generally Matter of Country-Wide Ins. Co. [ Briones ], 149 A.D.2d 313, 314; Zulferino v State Farm Auto. Ins. Co., 123 A.D.2d 432, 432-433).
Accordingly, the Supreme Court should have granted the defendant's motion for summary ...