Tejpal v New York Life Ins. Co.

[*1] Tejpal v New York Life Ins. Co. 2004 NY Slip Op 51113(U) Decided on October 1, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
x

NAVAL K. TEJPAL, Respondent,

against

NEW YORK LIFE INSURANCE COMPANY, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (V. Brathwaite-Nelson, J.), entered October 2, 2003, which denied its motion for summary judgment dismissing the complaint.

Order unanimously reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

Plaintiff brought the instant breach of contract action to recover $18,450.42 allegedly due as a result of defendant's failure to pay him the full surrender value of a life insurance policy which defendant had issued to him and his wife. Following plaintiff's request for surrender of the policy, defendant sent plaintiff a check in the
amount of $66,817.93, accompanied by a statement of account indicating that the amount of an automatic premium loan (APL), an option which plaintiff had selected, had been deducted from the cash value of the policy, which had the effect of reducing the net cash surrender value of the policy. The check was endorsed by plaintiff and deposited into his bank account without any protest or reservation of rights.

In moving for summary judgment, defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting sufficient documentary proof to establish that it properly calculated the surrender value of the policy by paying the premium due for the third year of the policy from the cash value of the policy by means of an APL (in order to keep the policy in [*2]force); by adding back into the accumulated base plan guaranteed cash value of the policy the unused premium for the balance of the third year; by adding the cash value of paid-up additions and pro-rated dividends; and by deducting the value of the APL. This shifted the burden to plaintiff to come forward with evidence in admissible form showing the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The proof offered by plaintiff in opposition to the motion consisted of his affidavit in which he averred that defendant's agent had given him erroneous information regarding how the policy could be paid in full. However, the documentary evidence relied upon did not show that he had paid this amount. Rather, it demonstrated that plaintiff had apparently misapprehended how the amounts paid were to be applied to his coverage. The conclusory allegations raised by plaintiff in his affidavit were insufficient to counter the facts established by the documentary evidence. Mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d
557, supra). Accordingly, the court below erred in denying defendant's motion for summary judgment, and the complaint should be dismissed.
Decision Date: October 01, 2004