Opinion
June 20, 1967
Order entered November 18, 1966 granting summary judgment for the plaintiff against Gloria Gershonowitz unanimously reversed, on the law, with $50 costs and disbursements to abide the event, and the motion for summary judgment denied. The plaintiff seeks to recover the proceeds of a life insurance policy upon the life of Joseph Gershonowitz wherein she was named as the beneficiary by a change of beneficiary form executed by the deceased one day after his leg had been surgically amputated and some 10 days before his death. It is the position of the defendant Gloria Gershonowitz, the deceased's daughter who was the originally-named beneficiary, that the change of beneficiary was executed while her father was in feeble health, under the influence of drugs and incapable of understanding the nature of his act. The medical affidavit presented in defendant's behalf leaves much to be desired. The affiant was not present at the time the disputed instrument was executed. His medical opinion that the deceased was in no physical or mental condition to understand the nature of his act was based upon his review of the deceased's hospital record which disclosed the medication administered and the patient's post-operative state. Such opinion might carry less worth than that of the attending physician present at the signing of the change of beneficiary who deposed that the deceased was fully competent. But its worth, and the opinion of the attending physician for that matter, should not be judged on a motion for summary judgment. The record discloses the existence of an issue of fact and supplies basis for the defense. Considering the lack of knowledge of the defendant of the physical and mental condition of her father and of the circumstances surrounding his signing of the change of beneficiary and the difference of medical opinion as to the deceased's competency, we are of the opinion that only by a trial may the verities of the situation be revealed. Accordingly, the order granting summary judgment must be reversed.
Concur — Botein, P.J., Stevens, Capozzoli, Tilzer and McNally, JJ.