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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ACTION TO RECOVER PROCEEDS OF LIFE INSURANCE POLICY, INSURER DID NOT DEMONSTRATE THE INSURED WAS NOTIFIED OF THE PREMIUM DUE DATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the life insurance policy was never canceled and plaintiff was entitled to summary judgment in the action to recover the proceeds:

As relevant here, Insurance Law § 3211 provides that “[n]o policy of life insurance . . . delivered or issued for delivery in this state . . . shall terminate or lapse by reason of default in payment of any premium . . . in less than one year after such default, unless, for scheduled premium policies, a notice shall have been duly mailed at least fifteen and not more than forty-five days prior to the day when such payment becomes due” (Insurance Law § 3211[a][1]). The notice required shall “be duly mailed to the last known address of the policyowner” … . …

“The burden of proving valid cancellation of an insurance policy is upon the insurance company disclaiming coverage based on cancellation” … . We agree with the Supreme Court that William Penn failed to meet that burden and, therefore, was not entitled to summary judgment dismissing the complaint insofar as asserted against it. The evidence submitted on the motion and cross motion established that William Penn was aware that the policyholder had changed his address, but it failed to send a notice of premium due to that last known address at least fifteen days prior to the day when such payment became due … . Consequently, in accordance with the statute, the policy remained in effect for one year after the March 14, 2012, premium due date (see Insurance Law § 3211[a][1]). Since the policy was in effect on the date of the policyholder’s death, the plaintiff was entitled to summary judgment on the complaint insofar as asserted against William Penn … . Bradley v William Penn Life Ins. Co. of N.Y., 2019 NY Slip Op 02054, Second Dept 3-20-19

 

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DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED... SUPREME COURT SHOULD NOT HAVE SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT...