KITCHEN BATH CREATIONS LTD v. GUARDIAN LIFE INSURANCE COMPANY OF AMERICA (2000)

Supreme Court, Appellate Division, First Department, New York.

KITCHEN & BATH CREATIONS, LTD., Plaintiff-Appellant, v. The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Defendant-Respondent.

Decided: December 05, 2000

WILLIAMS, J.P., MAZZARELLI, ELLERIN, WALLACH and RUBIN, JJ.

Jeffrey A. Sunshine, for Plaintiff-Appellant. Randi F. Knepper, for Defendant-Respondent.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered September 16, 1999, which, inter alia, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant insurer established its prima facie entitlement to judgment in its favor as a matter of law by adducing proof demonstrating that it had never insured the decedent's life, and, indeed, that the decedent would not have been acceptable to it as a standard risk. Therefore, plaintiff, the alleged beneficiary of the policy purportedly issued by defendant insuring the decedent, was required to submit, in opposition to defendant's showing, evidentiary proof, in admissible form, demonstrating the existence of material questions of fact as to whether the alleged coverage existed (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). This plaintiff failed to do. Therefore, the IAS court properly granted defendant's motion.

MEMORANDUM DECISION.

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