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Kerrigan v. Metro. Life Ins. Co.

Supreme Court, Appellate Division, First Department, New York.
May 20, 2014
986 N.Y.S.2d 99 (N.Y. App. Div. 2014)

Opinion

2014-05-20

Elizabeth Francis KERRIGAN, Individually and as Executrix of the Last Will and Testament of Thomas W. Connelly, Deceased, Plaintiff–Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, et al., Defendants–Respondents.

Eric Dinnocenzo, New York, for appellant. d'Arcambal Ousley & Cuyler Burk LLP, New York (Michelle J. d'Arcambal of counsel), for respondents.



Eric Dinnocenzo, New York, for appellant. d'Arcambal Ousley & Cuyler Burk LLP, New York (Michelle J. d'Arcambal of counsel), for respondents.
GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, FREEDMAN, KAPNICK, JJ.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered on or about May 14, 2013, which, inter alia, denied plaintiff's motions for leave to amend the complaint, to compel discovery and for summary judgment, and granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

“Insurance Law § 3105 permits an insurer to rescind a policy where the application contains a material misrepresentation” ( East 115th St. Realty Corp. v. Focus & Struga Bldg. Devs. LLC, 85 A.D.3d 511, 511, 925 N.Y.S.2d 56 [1st Dept.2011] ). Although the EKG taken of the decedent in connection with the initial application revealed “abnormalities,” the decedent, who had a significant history of coronary artery disease, and had two prior heart attacks, stated, among other things, that he had never been treated for coronary disease, heart disorder, or high blood pressure. Thus, the underwriter's affidavit, along with the relevant underwriting guidelines establishing that the policy would not have been issued in this form had the true state of the decedent's condition been known, was sufficient to establish defendants' entitlement to judgment as a matter of law ( see Dwyer v. First Unum Life Ins. Co., 41 A.D.3d 115, 837 N.Y.S.2d 635 [1st Dept.2007] ).

Plaintiff's contention that the affirmations of the decedent's treating cardiologist, as well as the affirmation of another cardiology expert, put defendants on notice that the decedent had prior heart attacks, is unavailing, as plaintiff may not “shift the burden of truthfulness” to the insurer ( Friedman v. Prudential Life Ins. Co. of Am., 589 F.Supp. 1017, 1025 [S.D.N.Y.1984] [internal quotation marks omitted] ). There is no evidence to support the assertion that defendants had actual notice of anything other than “abnormalities” in the decedent's EKG. Defendants did not ignore the EKG or the test results, and made a decision based upon the physician's interpretation of the EKG, as well as the completed application, the paramedical examination and the personal history interview.

Based on the absence of actual knowledge, plaintiff's estoppel/waiver argument fails ( compare United States Life Ins. Co. in the City of N.Y. v. Blumenfeld, 92 A.D.3d 487, 489–490, 938 N.Y.S.2d 84 [1st Dept.2012] ). Equally unavailing is plaintiff's assertion that defendants should be precluded from referring to the more specific facts referenced in the February 24, 2004 letter, which referenced additional treatment for myocardial infarction, uncontrolled hypertension, and noncompliance with medication, as the second letter provided additional facts supporting the same basis for claim denial, namely the decedent's medical history ( see Abreu v. Huang, 300 A.D.2d 420, 751 N.Y.S.2d 583 [2d Dept.2002] ).

Furthermore, inasmuch as the underwriting guidelines were properly followed, there were no issues of facts warranting additional discovery, and the motion for leave to amend to add bad faith causes of action was properly denied.


Summaries of

Kerrigan v. Metro. Life Ins. Co.

Supreme Court, Appellate Division, First Department, New York.
May 20, 2014
986 N.Y.S.2d 99 (N.Y. App. Div. 2014)
Case details for

Kerrigan v. Metro. Life Ins. Co.

Case Details

Full title:Elizabeth Francis KERRIGAN, Individually and as Executrix of the Last Will…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: May 20, 2014

Citations

986 N.Y.S.2d 99 (N.Y. App. Div. 2014)
117 A.D.3d 562
2014 N.Y. Slip Op. 3620

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