37 A.D.2d 527 | N.Y. App. Div. | 1971
Order, Supreme Court, New York County, entered on January 8,1971, herein appealed from, modified, on the law, and the individual plaintiffs’ motion for summary judgment is granted, with costs to plaintiffs-appellants. As so modified, the order appealed from is otherwise affirmed, and the action with respect to the corporate plaintiff is severed since a counterclaim has been interposed as to it. Appellants shall recover of respondent $50 costs and disbursements of this appeal. Defendant issued a group life insurance policy to the corporate plaintiff in February, 1960. Decedent, Ben Parkoff, whose beneficiaries are the individual plaintiffs, received an initial insurance certificate, as an employee of the corporate plaintiff, Atlantic New York Corp. (Atlantic) effective January 1, 1966, in the amount of $3,500. Effective January 1, 1968, the amount of the insurance was changed to $15,000 by an alleged promotion of Parkoff to supervisor. Parkoff died December 13,1968. Payment of the proceeds of the policy was refused. Suit on the policy was commenced in January, 1970. In its answer defendant alleged that Parkoff was not a “ Supervisor ” or even an eligible employee. On the motion for summary judgment, pursuant to CPLR 3212, defendant’s affidavit in opposition merely stated that Parkoff was not an employee and asserted that he was a brother of some of the principals of Atlantic and that he owned and managed a clothing business of his own in Manhattan. No details as to the name, location or operation of such business were given beyond the bare allegations. It was incumbent upon defendant to establish a genuine issue of fact and not simply rest in its affidavit upon what, essentially, had been averred in the