Reilly v. Insurance Co. of North America

• Decision Date: 15 July 1969
• Citation: 302 N.Y.S.2d 435,32 A.D.2d 918
• Parties: Maryellen REILLY, Plaintiff-Respondent-Appellant, v. INSURANCE AMERICA, Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 435

302 N.Y.S.2d 435

32 A.D.2d 918

Maryellen REILLY, Plaintiff-Respondent-Appellant, v. INSURANCE AMERICA, Defendant-Appellant-Respondent.

Supreme Court, Appellate Division, First Department.

July 15, 1969.

R. Podolsky, New York City, for plaintiff-respondent-appellant.

M. W. Brody, New York City, for defendant-appellant-respondent.

Before EAGER, J.P., and CAPOZZOLI, TILZER, NUNEZ and STEUER, JJ.

PER CURIAM.

Order entered on January 31, 1969, denying plaintiff's motion for summary judgment and defendant's request for summary judgment, affirmed, without costs and without disbursements, and the plaintiff is directed to serve a complaint in this action, which shall thereafter proceed in the regular manner. This determination is without prejudice to a motion for judgment under CPLR 3212 after issue is joined herein.

We believe that this action to recover the sum of $1,848.17, allegedly due under a group accident insurance policy, in view of the factual situation presented, was improperly commenced by service of a notice of motion for summary judgment, pursuant to CPLR 3213. The impropriety of the utilization of that section is demonstrated by the fact that, involved herein, is the interpretation of terms contained in the subject policy and undecided questions of fact. The defendant, however did not object to the procedure used by plaintiff, and, in fact, sought similar relief itself. It requested summary judgment. It did this even though CPLR 3213 does not provide for awarding summary judgment to a defendant. Plaintiff did not object to defendant's request on this procedural ground.

In short, these parties have, by their actions, chosen the procedure which they seek to follow. 'Where, * * * all parties to a litigation choose to do so, they may to a large extent chart their own procedural course through the courts'. (Stevenson v. News Syndicate, 302 N.Y. 81, 87, 96 N.E.2d 187, 190.)

Having followed this unorthodox procedure, both parties have failed to present to this court affidavits containing evidentiary matter sufficient to enable the court to grant summary relief.

The question raised by the contention of the parties involves a determination of whether the unmodified term 'Dollars', as used in the policy, refers to Canadian or U.S. currency.

The defendant is concededly a Pennsylvania Insurance Company, with its home office in Philadelphia, Pa., and offices in Canada. It issued an employee group accident policy to Fraser Companies Limited and/or Fraser Paper Limited, Edmundston, New Brunswick, as policy holder. This policy covered citizens of the United States who lived and worked in New York, for a New York corporation which was wholly owned by the Canadian assured.

The plaintiff is the widow and beneficiary of Gerard T. Reilly, a person covered under the above group policy. The deceased was an American citizen, who lived, worked and died in the State of New York. The plaintiff has asserted that the deceased was paid in American money and that the premiums for the policy in question were deducted from his salary and paid in American money.

It is noted that the original policy is entitled 'INSURANCE COMPANY OF NORTH AMERICA, Philadelphia, Pennsylvania'. The certificate issued thereunder for the benefit of the deceased, Gerard T. Reilly, is entitled 'INSURANCE COMPANY OF NORTH AMERICA, Toronto, Canada'. An examination of the conditions in both the original policy and the certificate issued thereunder discloses references to the United States of America and to Canada. For example, in the certificate of insurance, under the heading 'PROVISIONS AND STATUTORY CONDITIONS', the language used concerning NOTICE AND PROOF OF CLAIM refers to 'Head Office or Chief Agency of the Company in the Province.' (Emphasis added.) In the paragraph entitled LEGAL ACTIONS, it sets forth, amongst other things, that 'No such action shall be brought after the expiration of three years (permitted by law in the State where the insured resides)'. * * *'. (Emphasis added.)

Special Term held that 'it does not appear * * * where the policy was delivered or whether the number of dollars paid in premiums was calculated on the basis of United States or Canadian currency'. These are important questions, the answers to which cannot be definitely found in the papers submitted.

It is important to note that the affidavit of the defendant in opposition to the plaintiff's motion is executed by one, Norman Spears, who describes himself as the Group Superintendent of defendant and who makes clear that he submits his affidavit based upon records which are under his supervision and to which he has access. He claims no personal knowledge of the transaction. He admits that the company which employed the deceased is a New York corporation, owned by the Canadian company.

Based upon records he makes the bald assertion that the policy was negotiated by defendant's Canadian office and, at p. 32 of the record, he says 'the application was probably signed in Edmundston' etc.

It seems to us that the one to execute the affidavit on behalf of the defendant should have been someone who had a hand in the actual negotiation of this policy, who would be in a position to tell us where the negotiations took place, with whom they were conducted, the circumstances surrounding the transaction and to whom and where the policy was delivered. Mr. Spears, although without any personal knowledge of his own, asserts that the policy 'was to be paid for in...