101 A.D.2d 897 | N.Y. App. Div. | 1984
Appeal from a resettled order of the Supreme Court in favor of defendant Frederick V. Dona, Jr., entered July 2, 1982 in St. Lawrence County, upon a dismissal of the complaint by the court at Trial Term (Shea, J.), at the close of the entire case. U This action was brought initially against defendant Frederick V. Dona, Jr. (a life insurance agent), the Mutual Life Insurance Company of New York (MONY), and various officers and employees of MONY, for fraud and conspiracy to commit fraud in connection with the 1976 issuance of a policy insuring plaintiff’s life in the sum of $35,000. Plaintiff alleged that Dona had represented to him that, by using the interest on the cash value of an earlier MONY policy and future annual dividends, the annual premiums on the new policy would only be $300. Plaintiff allegedly letter discovered, however, that not only would the premiums on the new policy be in excess of $300, but also that any reduction in premiums under the proposed arrangement would entail borrowing against the cash value of his existing policy. The relief demanded in the complaint was that a $35,000 policy be issued to him at an annual cost of $300, with the individual defendants being required to pay the difference necessary to cover the actual cost of the premium. MONY had offered to rescind the entire transaction and restore plaintiff to his original position with the prior policy. Previously, plaintiff’s claims against MONY and its officers and employees were dismissed. On appeal, we affirmed (Broughton v Dona, 63 AD2d 1101, app dsmd 46 NY2d 1013, mot for lv to app den 47 NY2d 709). Plaintiff’s remaining cause of action against Dona came on for jury trial and, at the close of all the evidence, Trial Term dismissed the complaint for failure of proof. This appeal by plaintiff ensued. 11 Plaintiff attacks the dismissal of his action on both