Broughton v. Dona
| Decision Date | 29 June 1978 |
| Parties | Bradford B. BROUGHTON, Appellant, v. Frederick V. DONA et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ira M. Ball, Utica, for appellant.
Samuel C. Cantor, New York City (John D. Eisner, New York City, of counsel), for respondent Mut. Life Ins. Co. of New York.
Williams, Micale & Wells, Syracuse (Peter N. Wells, Syracuse, of counsel), for remaining respondents.
Before SWEENEY, J. P., and STALEY, LARKIN, MIKOLL and HERLIHY, JJ.
MEMORANDUM DECISION.Appeal from (1) orders of the Supreme Court at Special Term, entered September 2, 1977 and September 8, 1977 in St. Lawrence County, which dismissed the complaint as against all of the defendants except defendant, Frederick V. Dona, Jr., and (2) the judgments entered thereon.
On December 3, 1975, the plaintiff, who was the owner of a $10,000 Mutual Life Insurance Company policy, was solicited by defendant Dona, an agent of Mutual Life Insurance Company, to apply for a new $35,000 life insurance policy. Dona allegedly represented that the premium on the new $35,000 policy would be $300 annually. Plaintiff signed an application which stated that the premium would be $1,519.70 although plaintiff claims that this figure was not entered on the application at the time he signed it. Dona persuaded plaintiff to sign a blank loan agreement to be used against the cash surrender value of plaintiff's $10,000 policy. The loan agreement was processed by Dona for $3,444, representing a payment for two annual premiums on the $35,000 policy. Plaintiff alleges that it was not until he received his new policy that he learned the annual premium for the policy would be $1,519.70 and that the loan against his original policy was in the amount of $3,444.
Plaintiff thereafter commenced this action based on fraud and conspiracy to commit fraud. Defendants Camp, Bivona, Johnson and Blakeslee were sued as individuals although Camp was the General Manager of the Syracuse Regional Office of the Mutual Life Insurance Company of New York, Bivona, the Assistant Manager, Johnson, an Assistant Vice President of the Sales Department and Blakeslee, a Vice President and General Counsel for Mutual Life. It was alleged that said defendants were involved in a conspiracy with Dona to defraud the plaintiff in connection with the $35,000 life insurance policy. Plaintiff admittedly joined the Mutual Life Insurance Company of New York as a party defendant only in order that the court may issue orders to it to grant plaintiff his full relief. By way of relief plaintiff is in essence seeking that Mutual Life Insurance Company of New York be forced to issue him a $35,000 life insurance policy at an annual cost to him of $300 with the individual defendants being required to pay the difference necessary to cover the normal cost of the premium.
Defendants moved to dismiss the complaint pursuant to CPLR 3211 (subd. (a), pars. 5, 7) and plaintiff cross-moved pursuant to CPLR 2215 for an order pursuant to article 15 of the Judiciary Law and ...
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Broughton v. Dona
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Broughton v. Dona
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