The defendant has moved for summary judgment dismissing the complaint. In her complaint, the plaintiff, the estranged wife of David Gentile, who died in May of 1994, claims that the defendant has refused to make payment on an insurance policy on David Gentile's life which covered a period from November of 1982 through November of 2021. The plaintiff was the named beneficiary in the policy. The plaintiff alleges that the defendant's denial of coverage based on the decedent's failure to make the monthly payments was improper inasmuch as the policy contained a benefit rider which provided that the defendant would waive the premiums in the event of a total disability continuously for six months during the period of disability. The complaint alleges that in1992 the decedent's physical and mental condition began deteriorating and that he incurred a series of medical problems, including diabetes, bursitis, high blood pressure, fibromyalgia, sleep apnea and various mental problems, with the decedent being totally disabled from June18, 1992 through the date of his death. The complaint seeks a declaratory judgment that the defendant's disclaimer is null and of no effect.

In moving for summary judgment, the defendant provides an affidavit from its customer [*2]service and claims department employee and documentary evidence showing that the subject policy did contain a waiver of premium disability benefit rider stating:

"Notice and Proof of Claim. We must be given written notice of claim and proof of disability while you are alive and totally disabled. If you fail to give notice and proof on time, we will not necessarily reject or reduce your claim. But you must show that you gave notice as soon as was reasonably possible. You must then give us proof of claim within 6 months of such notice or as soon as reasonably possible, but in no event, except in the absence of legal capacity, later than 1 year from the time proof is otherwise required."

The defendant argues that in order to be relieved of the obligation to pay the premiums

due to disability the decedent was required to give the defendant written notice of a claim and proof of total disability while alive and totally disabled or as soon as reasonably possible, but no more than one year than the time proof was otherwise required. Defendant provides copies of notices sent to the decedent in August of 1992 regarding his failure to pay the premiums, indicating the policy would lapse if payment was not made. The policy was then cancelled on December 1, 1993. On December 28, 1994 an attorney for decedent's estate forwarded correspondence to the defendant, indicating that decedent had been determined to be disabled by the Social Security Administration on August 24, 1993 and that the decedent had subsequently died. Defendant argues that since the written notification was received more than one year after the decedent was determined disabled by the Social Security Administration, the requirements of the disability rider were not met. As a result, on February 10, 1995 defendant forwarded correspondence to estate counsel advising the decedent's policy had lapsed.

Defendant also offers documentary evidence that on November 6, 1992 defendant was placed into rehabilitation pursuant to an order of the Commonwealth Court of Pennsylvania. The court appointed a Rehabilitator to, among other duties, process claims against the defendant. On September 16, 1994 the Commonwealth Court of Pennsylvania issued an order directing that claims of the type alleged in plaintiff's complaint be filed with the Rehabilitator no later than November 30, 1994, except that a proof of claim for death benefits did not need to be filed until after defendant denied the request. The order further stated that the failure to file a claim by the claim filing deadline would result in the claim being disallowed subject to late claim provisions contained in Article V of Pennsylvania Insurance Department Act of 1921, and the opportunity to show good cause for an extension of time. Defendant argues that plaintiff failed to timely file a proof of claim for denial of death benefits in accordance with this order. On March 10, 2000 the Commonwealth Court issued an order imposing a claims bar date of June 30, 2000. Defendant offers proof that notice of this date was sent to the decedent by first class mail on March 31, 2000

at his last known address and that notice was also published twice in a number of newspapers over a two week period within thirty days of the date of the order.

Based upon its evidentiary submissions the defendant as the movant has established its entitlement to judgment as a matter of law. See, Bissell v. Town of Amherst, 6 AD3d 1229 (4th Dept. 2004); see also, Loveless v. American Ref-Fuel Co. of Niagara, L.P., 299 AD2d 819 (4th Dept. 2002). Since the defendant has established its entitlement for summary judgment through the tender of admissible evidence, the burden now shifts to the plaintiff as the non-moving party to raise an issue of fact. See, Hunt v. Kostarellis, 27 AD3d 1178 (4th Dept. 2006). The plaintiff [*3]has failed in her burden of doing so through the submission of admissible non-speculative evidence. See, Majchrzak v. Harry's Harbour Place Grill, Inc., 28 AD3d 1109 (1st Dept. 2006). In her affidavit, the plaintiff does not dispute the terms of the insurance policy. Plaintiff relies upon the determination of the Social Security Administration with respect to a finding of the decedent's total disability. The plaintiff, however, offers no evidentiary proof, nor does she even claim that the decedent or anyone on his behalf provided the requisite notice to the defendant with respect to the disability. Nor does the plaintiff offer any proof in evidentiary form that the cancellation notices were not received by the decedent. Instead, plaintiff only contends that she was not living with the decedent at the time and that she was unaware herself of the cancellation. Inasmuch as the plaintiff has failed to meet her burden of raising an issue of material fact in dispute, the defendant's motion is granted.

NOW, therefore, for the foregoing reasons, it is

ORDERED that the defendant's motion for summary judgment dismissing the complaint is granted.

ENTER

Dated: March 8, 2007

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice