Summary
In Aufiero v. New York Life Ins. Co. (74 N.Y.S.2d 277, 279), the court declared that a denial of a motion for summary judgment does not necessarily establish the law of the case.
Summary of this case from Cohen v. N.Y. Herald TribuneOpinion
November 8, 1948.
Present — Carswell, Acting P.J., Johnston, Adel, Sneed and Wenzel, JJ.
In an action to recover total disability benefits under a life insurance policy issued by defendant, formal proof was made on April 18, 1945, of total disability, within the meaning of the policy, existing from March 27, 1943, to December 15, 1943. After trial the complaint was dismissed on the ground that the policy required proof of total disability during the continuance of such disability. Judgment unanimously affirmed, with costs. ( Gottlieb v. New York Life Ins. Co., 136 Misc. 194; Kasarsky v. New York Life Ins. Co., 145 Misc. 732; Rose v. New York Life Ins. Co., 127 Ohio St. 265; Reed v. New York Life Ins. Co., 131 Neb. 330.) Lydon v. New York Life Ins. Co., ( 89 F.2d 78, certiorari denied 302 U.S. 703), relied upon by appellant, is readily distinguished. There the total disability was permanent because it continued until the assured's death. In the case at bar the total disability was temporary because it ended during the assured's lifetime and more than a year before notice was given of such disability.