Lefft v. Canada Life Assur. Co.
| Decision Date | 17 October 1972 |
| Citation | 40 A.D.2d 641,336 N.Y.S.2d 478 |
| Parties | Geraldine LEFFT, Plaintiff-Appellant, v. The CANADA LIFE ASSURANCE COMPANY, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
L. I. Isler, New York City, for plaintiff-appellant.
J. T. Morin, New York City, for defendant-respondent.
Before STEVENS, P.J., and McGIVERN, MARKEWICH, NUNEZ, and McNALLY, JJ.
Order of the Supreme Court, New York County, entered on November 17, 1971, granting defendant's motion for summary judgment dismissing the complaint and denying plaintiff's cross-motion for summary judgment, modified, on the law, to the extent of denying defendant's motion for summary judgment, and otherwise affirmed, without costs and without disbursements. On this record and in the interest of justice, the plaintiff, upon proof that she has a valid cause of action against the defendant on the assignment and upon submission of a proposed amended complaint, may apply to Special Term, within thirty days after the date of entry of the order hereon, for leave to serve an amended complaint.
The complaint is based on plaintiff's rights as beneficiary under the policy. As beneficiary, her rights are limited to the optional settlement annexed to the policy. The documents and affidavits submitted on the motion for summary judgment indicate that plaintiff may possibly have a cause of action based on an assignment of the policy to the plaintiff to the extent of $35,000. If the assignment is valid, plaintiff may well be entitled to payment of the $35,000 and the optional settlement with respect to the balance. The complaint does not allege a cause of action as assignee, and plaintiff may not have summary judgment on a cause of action not alleged in the complaint. Moreover, plaintiff may not defeat a motion for summary judgment on the ground that she has a cause of action not alleged in the complaint. Raymond Babtkis Associates, Inc. v. Tarazi Realty Corp., 34 A.D.2d 754 at 755, 310 N.Y.S.2d 343 at 345, and cases cited therein. On this record and in the interest of justice, the plaintiff, upon proof that she has a valid cause of action against the defendant on the assignment and upon submission of a proposed amended complaint, may apply to Special Term for leave to serve an amended complaint. Said application to be made within 30 days after the entry of the order hereon. See Cushman & Wakefield v. John David, Inc., 25 A.D.2d 133, 267 N.Y.S.2d 714.
Appellant seeks reversal on the basis of the assignment dated May 2, 1968. However, whereas the assignment was limited 'to the extent of $35,000,' plaintiff's complaint asserts a cause of action as beneficiary for $50,000, the face amount of the policy. No reference to the assignment is made is the complaint. I concur with the majority solely on constraint of Raymond Babtkis Associates, Inc. v. Tarazi Realty Corp. 34 A.D.2d 754, 755, 310 N.Y.S.2d 343, 345 and cases therein cited. In my view plaintiff is clearly entitled to the lump sum payment of $35,000 upon a proper complaint. Indeed defendant, in a letter to plaintiff's attorney, committed itself to honor the assignment and make payment, conditional only on issuing its check payable jointly to plaintiff and her children, which condition was acceptable to plaintiff.
I would grant partial summary judgment Now to the plaintiff to the extent of $35,000, as the plaintiff concededly is both beneficiary and assignee of the policy to this extent, and there is no reason, under the modern CPLR (see Sections 104, 3026), for denying her this relief merely because she sues as a beneficiary. The Assignment was the specific basis of the plaintiff's cross-motion, and of the plaintiff's application for re-argument and reconsideration. It was extensively brief by both sides, was the subject of affidavits, and its validity repeatedly admitted by both parties. And it was exclusively the subject of the court's opinion, following the motion for re-argument.
The single case cited by the majority as a bar to giving relief now is not an apt precedent, and does not apply here, when both parties make a complete submission on the issue of the Assignment and when the court below considered and disposed of the issue. The Raymond Babtkis Associates case, cited by the majority, and all of the citations therein, relate only to a situation when one party, the defendant, moves to dismiss; but here, both parties move, and both specifically submit on the Assignment, the plaintiff making the Assignment the basis of relief. Pleading it belatedly would be the merest superfluity, and sending it back to Special Term for a pleading by the plaintiff would simply cause a repetitive duplication of effort, with no change in the result, as we all agree...
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...on the ground that he or she may have a good cause of action other than as alleged in that party's pleading (Lefft v. Canada Life Assur. Co., 40 A.D.2d 641, 336 N.Y.S.2d 478; Babtkis Assoc. v. Tarazi Realty Corp., 34 A.D.2d 754, 755, 310 N.Y.S.2d 343, 344; Central State Bank v. American App......
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