Green v. William Penn Life Ins. Co. of N.Y.

• Decision Date: 17 June 2010
• Citation: 74 A.D.3d 570,902 N.Y.S.2d 542
• Parties: Lisa C. GREEN, Plaintiff-Appellant, v. WILLIAM PENN LIFE INSURANCE COMPANY OF NEW YORK, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 542 74 A.D.3d 570 Lisa C. GREEN, Plaintiff-Appellant, v. WILLIAM PENN LIFE INSURANCE COMPANY OF NEW YORK, Defendant-Respondent. Supreme Court, Appellate Division, First Department, New York. June 17, 2010.

Thomas Torto, New York, for appellant.

Bleakley Platt & Schmidt, LLP, White Plains (Robert D. Meade of counsel), for respondent.

ANDRIAS, J.P., SAXE, NARDELLI, McGUIRE, ACOSTA, JJ.

Upon remittitur from the Court of Appeals (12 NY3d 342 [2002]), judgment, Supreme Court, New York County (Harold Beeler, J.), entered June 29, 2006, reversed, on the facts, without costs, and the matter remanded for a new trial.

SAXE and ACOSTA, JJ. concur in a separate memorandum by SAXE, J.; McGUIRE, J. concurs in a separate memorandum; and ANDRIAS, J.P. and NARDELLI, J. dissent in a memorandum by ANDRIAS, J.P. as follows:

SAXE, J. (concurring).

On this appeal we are required to consider the evidence in a case where a man died under circumstances that led the trial court to rule that he committed suicide. On our first review of that determination, we held, by a vote of 3-2, that as a matter of law, the common law presumption against suicide had not been sufficiently rebutted (48 A.D.3d 37, 848 N.Y.S.2d 109 [2007] ). An appeal to the Court of Appeals followed. The Court of Appeals disagreed with our reliance on the presumption to determine the appeal as a matter of law, observing that "the evidence was strong enough to permit a finding of suicide, though not to require it," and remitted the matter to this Court for exercise of our weight of the evidence review power (12 N.Y.3d 342, 347, 879 N.Y.S.2d 822, 907 N.E.2d 700 [2009] ). Following the Court of Appeals' instructions, and conducting a weight of the evidence review, a plurality of this Court now concludes that while there was evidence that permitted a finding of suicide ( see 12 N.Y.3d at 347, 879 N.Y.S.2d 822, 907 N.E.2d 700 [emphasis added] ), it was not strong enough to outweigh the evidence tending to point to death by means other than suicide, and that therefore a new trial is needed. A third justice concurs with the conclusion that a new trial is necessary, but declines to reach the weight of the evidence issue, concluding instead that the erroneous mid-trial ruling allowing defendant to present expert testimony alone requires a new trial.

Before addressing the evidence, we must first determine the correct standard of review to be applied. While there are cases stating the standard in a variety of ways, not all of which arereconcilable, the correct standard is, in fact, well established. In Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978], the Court of Appeals explained the distinction between appellate review of the weight of the evidence and appellate review of the sufficiency of the evidence; in doing so, it instructed that as to a weight of the evidence review of a nonjury determination, the Appellate Division has the power to make new findings of fact:

"In reviewing a judgment of Supreme Court, the Appellate Division has the power to determine whether a particular factual question was correctly resolvedby the trier of facts. If the original fact determination was made by a jury, as in this case, and the Appellate Division concludes that the jury has made erroneous factual findings, the court is required to order a new trial, since it does not have the power to make new findings of fact in a jury case. The result is, of course, different in cases not involving the right to a jury trial, since then the Appellate Division does have the power to make new findings of fact. In either situation, the determination that a factual finding was against the preponderance of the evidence is itself a factual determination based on the reviewing court's conclusion that the original trier of fact has incorrectly assessed the evidence" ( id. at 498 [410 N.Y.S.2d 282, 382 N.E.2d 1145] [citations omitted] [emphasis added] ).

It has therefore become well settled that in reviewing a case tried without a jury, the Appellate Division's "authority is as broad as that of the trial court" ( Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499 470 N.Y.S.2d 350, 458 N.E.2d 809 [1983]; see also 1 Newman, New York Appellate Practice, § 4.03[5], at 4-26). The Appellate Division "may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses" ( Northern Westchester Professional Park, supra [internal quotation marks and citation omitted] ).

Yet, defendant asserts that our review power is more limited here. It suggests that appellate review of nonjury determinations may be either de novo review, which it says is applicable where essentially legal issues were presented at trial, or weight of the evidence review, which it claims is appropriate where the determination under review was based on credibility, and which it characterizes as a more limited type of appellate review (citing Coliseum Towers Assoc. v. County of Nassau, 2 A.D.3d 562, 769 N.Y.S.2d 293 [2003] ). It reasons that when the Court of Appeals remitted this matter for a "weight of the evidence" review, the Court intended to circumscribe this Court's authority, and preclude a de novo review of the evidence. We reject this reasoning. To the extent some cases characterize weight of the evidence review as"limited" ( see e.g. Coliseum Towers ), we disagree. The Court of Appeals' remittitur referred to a weight of the evidence review in order to distinguish that type of review from our prior determination, which was made on the law rather than on the facts.

Nor do we accept defendant's suggestion that Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] dictates that our only task here is to decide whether the trial court's determination was based on a fair interpretation of the evidence. The Thoreson decision concerned an award of punitive damages under Executive Law § 297(9), and merely recited, without discussion, its agreement with the use of the "fair interpretation of the evidence" standard there. The questions raised in that case did not involve, and the Court neither discussed nor mentioned, the Appellate Division's well established broad authority to make its own findings of fact, as recognized in Northern Westchester Professional Park Assoc., 60 N.Y.2d at 499, 470 N.Y.S.2d 350, 458 N.E.2d 809.

Moreover, the Thoreson decision specifies that the "fair interpretation" approach applies " especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (80 N.Y.2d at 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [internal quotation marks and citations omitted] [emphasisadded] ). Limiting appellate review to the fair interpretation of the evidence approach may be appropriate where the findings rest predominantly on credibility determinations, because the latter are entitled to substantial deference. However, it is not appropriate where the trial court's findings rest largely on inferences drawn from established facts and verifiable assertions. In that case, there is no valid rationale for precluding the appellate court from finding facts, as indicated in Northern Westchester Professional Park Assoc., 60 N.Y.2d at 499, 470 N.Y.S.2d 350, 458 N.E.2d 809.

Here, although plaintiff's credibility was properly called into question by the trial court in some respects, when the entirety of the evidence is considered, it becomes apparent that the question of whether Mr. Green committed suicide is not logically dependent on findings regarding plaintiff's credibility. That is, our analysis does not turn on whether plaintiff was lying or telling the truth. Rather, this fact-finding determination is based predominately on inferences drawn from established facts such as empty pill vials and prescription dates, objectively verifiable assertions regarding the decedent's conduct shortly before his death, and statements by witnesses whose credibility is not questioned. As to those aspects of plaintiff's testimony in which her credibility is arguably relevant to a finding, those assertions that are appropriately discounted or rejected based upon credibility problems do not have a significant impact on the question of whether Mr. Green committed suicide.

To conclude this preliminary discussion of the proper standard of review, we observe that since the Court of Appeals has already asserted that " the evidence [in this case] was strong enough to permit a finding of suicide, though not to require it" (12 N.Y.2d at 347, 239 N.Y.S.2d 665, 190 N.E.2d 13), there would be little point in further assessment if our task were limited to merely deciding whether the trial court's determination was based on a fair interpretation of the evidence, rather than assessing de novo whether the weight of the evidence supports the determination.

In accordance with the foregoing, the standard of review we will apply here is the de novo weighing of the evidence set forth in Northern Westchester Professional Park Assoc., rather than the more limited approach referred to in Thoreson.

Before proceeding to weigh the evidence, we must also clarify defendant's burden of proof. Plaintiff's burden of proof on her claim for the life insurance benefit is satisfied simply by proof of Mr. Green's death, the existence of the life insurance policy, and plaintiff's status as the beneficiary of that policy ( Schelberger v. Eastern Sav. Bank, 93 A.D.2d 188, 192-193, 461 N.Y.S.2d 785 [1983], affd. 60 N.Y.2d 506, 470 N.Y.S.2d 548, 458 N.E.2d 1225 [1983] ). The claim that benefits are not payable because Mr. Green committed suicide constitutes an affirmative defense, which must be proved by defendant insurance company. Any affirmative defense-even one with no applicable presumption to overcome-places the burden of proof of that issue on its...