Cable v. Prudential Ins. Co. of America

• Citation: 89 A.D.2d 636,453 N.Y.S.2d 86
• Parties: Dorothy CABLE, as Parent and Natural Guardian of Gea Nicole Cable, an Infant, Respondent, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant, and Linda Mazzilli, Appellant.
• Decision Date: 01 July 1982
• Court: New York Supreme Court Appellate Division

Page 86

453 N.Y.S.2d 86

89 A.D.2d 636

Dorothy CABLE, as Parent and Natural Guardian of Gea Nicole Cable, an Infant, Respondent, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant and Linda Mazzilli, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 1, 1982.

Frank W. Getman, Oneonta (Clifton M. Tamsett, Jr., of counsel), for appellant.

Barry M. Lippman, Kingston, for respondent.

Before SWEENEY, J. P., and KANE, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered November 24, 1981 in Ulster County, which denied defendant Mazzilli's motion for summary judgment, granted plaintiff's motion for summary judgment, and granted defendant Prudential's cross motion for an order granting leave to said defendant to make payment into court of $50,000 plus interest, and upon such payment to discharge it from all further liability and dismiss it from the action.

The underlying action is one to recover on a life insurance policy issued to Robert A. Cable by defendant Prudential Insurance Company of America (Prudential). The beneficiary listed on the policy was defendant Linda Mazzilli. The insured retained the right to change the beneficiary and the policy provided as follows:

You may designate or change a beneficiary. Your request must be in writing and in a form which meets our needs. It will take effect only when we file it at our home office; this will be after you send the contract to us to be endorsed, if we ask you to do so. Then any previous beneficiary's interest will end as of the date of the request. It will end then even if the insured is not living when we file the request.

In late August or early September of 1980, the insured advised Prudential that he wished to change the beneficiary and name his daughter, an infant, the plaintiff in the instant action. He was sent the necessary forms which he signed and returned to the insurance company on September 13, 1980. He did not, however, return the insurance policy to Prudential for endorsement. The insured was again contacted by Prudential on October 8, 1980 and requested to send the policy for endorsement. At this time the insured stated that he would do so. He was killed in an automobile accident on October 9, 1980 without having sent in the policy. Special Term denied defendant Mazzilli's motion for summary judgment but granted plaintiff's motion for summary judgment and authorized defendant Prudential to make payment into court and upon so doing to be discharged from further liability. This appeal ensued.

The sole issue on this appeal is whether Special Term...