From Casetext: Smarter Legal Research

Chickering v. Colonial Life Insurance Co. of America

Appellate Division of the Supreme Court of New York, Second Department
Jan 26, 1976
51 A.D.2d 566 (N.Y. App. Div. 1976)

Opinion

January 26, 1976


In an action upon a life insurance policy, defendant appeals from an order of the Supreme Court, Dutchess County, dated September 24, 1975, which denied its motion for summary judgment. Order reversed, on the law, without costs, and motion granted. Defendant's moving affidavits reveal that, at the time of the insured's death, the policy in question had lapsed due to a default in payment of a specific premium. The only affidavit submitted in opposition was that of plaintiff's attorney. An opposing affidavit by an attorney without personal knowledge of the facts, however, has no probative value and should be disregarded (Di Sabato v Soffes, 9 A.D.2d 297). In addition, the record on this appeal indicates that the only evidence which plaintiff might introduce at the trial is such that impermissible inferences would have to be drawn therefrom in order for it to have any effect (see Ruppert v Brooklyn Hgts. R.R. Co., 154 N.Y. 90; Grawunder v Beth Israel Hosp. Assn., 242 App. Div. 56, affd 266 N.Y. 605; Olsen v St. Margaret of Scotland R.C. Church, 21 A.D.2d 827). Consequently, such evidence, by itself, was insufficient to defeat summary judgment (see Friese v Baird, 36 A.D.2d 727; cf. Phillips v Kantor Co., 31 N.Y.2d 307) and defendant's motion should have been granted. It would also appear that the action is time-barred. Gulotta, P.J., Latham, Margett, Damiani and Christ, JJ., concur.


Summaries of

Chickering v. Colonial Life Insurance Co. of America

Appellate Division of the Supreme Court of New York, Second Department
Jan 26, 1976
51 A.D.2d 566 (N.Y. App. Div. 1976)
Case details for

Chickering v. Colonial Life Insurance Co. of America

Case Details

Full title:ETHEL T. CHICKERING, Respondent, v. COLONIAL LIFE INSURANCE COMPANY OF…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 26, 1976

Citations

51 A.D.2d 566 (N.Y. App. Div. 1976)

Citing Cases

Valenti v. Purdy

Order reversed insofar as appealed from, on the law, with one bill of $50 costs and disbursements, and…

Brown v. Insurance Co.

The notice does not change the law of evidence or the law of agency. An agent, who is authorized to waive…