Opinion
March 28, 1966
The plaintiff appeals from an order granting summary judgment to the defendant. The complaint alleged that the defendant had issued accident insurance policies to Louis Ross and that the plaintiff was the beneficiary of both policies. It further alleged that the insured had met his death by accidental means within the terms of the policies and that the plaintiff had duly performed all the conditions necessary thereunder but that defendant had refused to make payment. The answer, after denying the material allegations of the complaint, set forth affirmative defenses that the actions had not been commenced within the time limitation under the terms of the policy and by statute. The supporting affidavit, made by an associate of the defendant's law firm, reiterated its affirmative defense based upon the Statute of Limitations and in corroboration thereof properly stated as upon his knowledge, that the action was not commenced until January 21, 1964 — decedent died November 5, 1958 — approximately five years after the death of the insured and that under the provisions of section 164 (subd. 3, par. [A], cl. [11]) of the Insurance Law, such an action shall be commenced within a three-year period and is applicable to the present policies. The attorney for the plaintiff submitted an affidavit based upon information and belief, wholly insufficient and without probative value. (See Di Sabato v. Soffes, 9 A.D.2d 297, 301.) From a review of all of the papers submitted on the motion, there appears to be no real issue of fact but rather a legal bar to the maintenance of the action. Order affirmed, without costs. Gibson, P.J., Taylor, Aulisi and Hamm, JJ., concur.