Opinion
February 15, 1973
Judgment, Supreme Court, New York County, entered on July 26, 1972, unanimously modified, on the law and the facts, so as to direct judgment in favor of the plaintiff in respect of all benefits under Group Contract 50RP and Supplements thereto issued by the Metropolitan Life Insurance Company to John C. Glidden, and otherwise affirmed, without costs and without disbursements. The finding of the trial court that John C. Glidden, deceased, was free to designate whomever he wished as beneficiary of the survivor's benefit insurance and the refund annuity contributions is clearly against the weight of the evidence. The decedent, in a separation agreement with plaintiff dated November 15, 1958, agreed that he would not change the beneficiary under the aforesaid Group Contract No. 50RP wherein plaintiff was named beneficiary. Subsequent to the execution of the separation agreement, and after his marriage to defendant, Phyllis O. Glidden, the decedent changed the beneficiaries of the various benefits designating Phyllis, and his son John, Jr., as beneficiary with Phyllis. The record clearly establishes that it was decedent's intent in the separation agreement to designate Grace as the beneficiary of all of the benefits under the group contract. The claimed ambiguity arises from reference in the separation agreement to the aforesaid group contract as the "Group Life Insurance Policy." The only competent evidence establishes the decedent's intent to grant all benefits in the group contract to his wife of more than 20 years and the mother of their only child. The record being adequate for a determination of the action on the merits, this court will modify the judgment, render a final determination (CPLR 5522), and grant the judgment which the court below should have granted ( McAvoy v. Harron, 26 A.D.2d 452), i.e., direct that the Metropolitan Life Insurance Company pay all benefits under the aforesaid group contract and supplements thereto, to Grace C. Glidden.
Concur — Stevens, P.J., McGivern, Markewich, Nunez and Lane, JJ.