Opinion
November 16, 1961
Appeal by plaintiff from an order of the Supreme Court at Special Term in Ulster County, which granted defendant insurance company's motion for summary judgment dismissing as against it the complaint in an action seeking, inter alia, to reform a liability insurance policy so as to include within the coverage a rowboat involved in a fatal accident. Essential to appellant's case was proof that defendant Cherney was the respondent insurance company's agent and not merely a broker. The only moving affidavits submitted upon that issue were those of respondent's attorney, who had no knowledge of the facts, and of respondent's area agent, who countersigned the policy and whose affidavit does no more than detail the steps taken in connection with the writing of this particular policy, and does not in any way touch the factual issue of agency or state any facts as to the relationship, or the absence of any relationship, between the insurance company and defendant Cherney or between defendant Cherney and himself. The opposing affidavits are likewise devoid of evidentiary facts. The affidavits being insufficient, the case for summary judgment depends entirely upon the pretrial testimony of defendant Cherney taken at the instance of appellant and submitted by respondent in support of this motion. In a somewhat unresponsive answer to a question by appellant's attorney, defendant Cherney said that she was not an agent of respondent; and she replied in the negative to the question whether she had an "arrangement" with respondent for the "writing" of policies "issued" by it. Although respondent's counsel repeatedly objected to inquiries of this nature as calling for conclusions, he now relies upon the answers as constituting a proper and sufficient factual basis for the summary judgment of dismissal. The statement volunteered by defendant Cherney that she was not an "agent", in whatever sense she may have used that term, affords thin support, if any at all; and her negative response to the neither clear nor precise question subsequently propounded and above quoted seems to us of no greater effect. To questions which might have elicited relevant factual testimony, objections, some groundless and some of doubtful validity at best, were interposed; and although these objections did not relate to form, the witness did not answer. That appellant may thus have been improperly precluded is, of course, no answer to this motion, as her remedy was at hand at the time and was not pursued; but it may not be amiss to note that respondent, while pointing to the deposition as proof, is in large part responsible for its deficiencies. The evidence submitted was insufficient to show that the action was without merit (Rules Civ. Prac., rule 113), considering, first, that plaintiff's proof upon the critical issue must come, apparently, from adverse parties and their agents and, second, that movant has failed to adduce the basic proof and evidentiary matter contemplated by the rule from those available witnesses most qualified to give it, either by affidavit of its officer or administrative employee having knowledge of the facts or even by the inclusion of relevant factual statements in the affidavit made by its area agent. We do not, of course, attempt to determine whether such slight proof as was here submitted might in some other case be sufficient, if not controverted by a showing of evidentiary facts by a party to whom the evidence and the witnesses should be as readily accessible and available as to the movant. Under the circumstances of this case at least, including the silence of respondent's employees and agents, respondent's proof was neither clear nor convincing, within the meaning of the authorities. ( Gramatan Nat. Bank Trust Co. v. Penney, 279 App. Div. 974; Stuyvesant Credit Union v. Manufacturers Trust Co., 239 App. Div. 187, 189, and cases there cited; 5 Carmody-Wait, New York Practice, § 39, p. 161.) As was held in these decisions, the burden is upon the movant to produce evidence which shall meet the tests there indicated, and that principle was not affected by the amendments to rule 113 effective March 1, 1959 (cf. Di Sabato v. Soffes, 9 A.D.2d 297, 299). "To grant summary judgment it must clearly appear that no material and triable issue of fact is presented * * *. This drastic remedy should not be granted where there is any doubt as to the existence of such issues * * * or where the issue is `arguable'." ( Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404; Falk v. Goodman, 7 N.Y.2d 87.) Order reversed, on the law and the facts, and motion denied, with $10 costs. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.