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Raffaele v. the United States Life Ins. Co.

Appellate Division of the Supreme Court of New York, First Department
Dec 2, 1999
(N.Y. App. Div. Dec. 2, 1999)

Opinion

December 2, 1999

Order, Supreme Court, New York County (Herman Cahn, J.), entered January 13, 1999, which, in an action on a life insurance policy, denied plaintiff's motion for summary judgment, unanimously affirmed, without costs.

Charles Fischer for Plaintiff-Appellant.

Susan T. Kluewer for Defendant-Respondent.

SULLIVAN, J.P., NARDELLI, MAZZARELLI, LERNER, BUCKLEY, JJ.


An issue of fact exists as to whether the decedent's application for life insurance, submitted four months before his death, misrepresented that he never "used cocaine, barbiturates, amphetamines or any other drug which might cause a dependency, other than as prescribed by a licensed physician". Such issue is raised by statements in the autopsy report and death certificate that the decedent had a history of "acute and chronic substance abuse" and that the cause of death was "intoxication due to combined effect of opiate, ethanol and cocaine"; the proximity of the decedent's death to the purchase of the policy; and the decedent's family's refusal to cooperate with defendant's investigation and their request that an autopsy not be performed. Whether the decedent was a drug user at the time he submitted the application is a matter peculiarly within the knowledge of plaintiff, who was the decedent's wife, and the decedent's other family members, and a summary disposition in plaintiff's favor would be premature at least until disclosure from her, and any other family members claiming knowledge of the decedent's abstinence from drugs, is complete (CPLR 3212 [f]).

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Raffaele v. the United States Life Ins. Co.

Appellate Division of the Supreme Court of New York, First Department
Dec 2, 1999
(N.Y. App. Div. Dec. 2, 1999)
Case details for

Raffaele v. the United States Life Ins. Co.

Case Details

Full title:SHELLY RAFFAELE, Plaintiff-Appellant, v. THE UNITED STATES LIFE INSURANCE…

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

Date published: Dec 2, 1999

Citations

(N.Y. App. Div. Dec. 2, 1999)