pleadings. Two years had passed since Parkoff’s death and approximately one year since the action was commenced. If facts as to his nonemployment were available, such facts should have been advanced. The effective date of the original coverage was January 1, 1966, while, as noted, the increased coverage became effective January 1, 1968. The present action was commenced January
21, 1970. Under the language of the policy as regards incontestability, whichever date is chosen, the defense as to the individual plaintiffs would seem to be time-barred
(Simpson v.
Phoenix Mut. Life Ins. Co., 24 N Y 2d 262 ). Concur — Stevens, P. J., Nunez and McNally, JJ.; MeGivern and Tilzer, JJ., dissent in the following memorandum by MeGivern, J.: The majority seems to have granted- summary judgment on two grounds: 1) it was incumbent on the defendant company to have demonstrated that the deceased was not an employee; and 2) that the
Simpson ease controls. I disagree with both predicates. To the contrary: the deceased is held forth in the complaint as “ one of the employees ”, and in plaintiffs’ supporting affidavits it is asserted that the policy was issued to him “while employed by the plaintiff, New York Atlantic Corp.”. The answer, however, denied that the deceased ever was an employee, and the affidavit in opposition denied that he was a “ Supervisor ”, as plaintiff fraudulently represented him to be. And the plaintiff did not counter with any proof of employment, such as social security data, payroll records, checks, in order to demonstrate the status of deceased as an employee. Nor was there any evidence to support the claim of deceased as a “ Supervisor ”, so as to qualify him within Classification II and the amount of insurance in the sum of $15,000. In the
Simpson case, the defense was not predicated, as it is here, on a misrepresentation of employment. There never was any question of his (Simpson’s) employment. There was in evidence an unchallenged employee enrollment card executed by Simpson. In fact, it was conceded that the deceased (Simpson) was an attorney, an assistant secretary of the corporation, and the only question raised by the defendant insurance company related to the number of hours he gave each week to his employer, the court holding that the nature of his work was “ discoverable ”. But, in our ease, the master policy provides that employees who do not regularly work 30 hours a week “ Are Excluded From Insurance Under The Policy ”, And subdivision 1of section 204 of the Insurance Law authorizes group life insurance, as a matter of public policy, only upon the status of employment. 'Thus, the rationale of
Simpson is appreciable: to give assurance to bona fide employees of insurance protection after two years, provided that the circumstances of the issuance of the certificate are “discoverable”. However, in the present case, the allegedly covert and fraudulent promotion in title of the deceased from Class IV “All Other Employees ” $3,500 to Class II “ Supervisors ” $15,000, was not discoverable prior to January, 1968. Applying
Simpson as a blind precedent would open the door to facile frauds. An original policy could call for $3,500, as here, but be increased to $20,000 by a “ promotion ” given to an insured on his deathbed. The enormity of the instant ease is all the more aggravated by the defendant’s claim that the deceased never was an employee at any time, although actual employment, in group policies, must needs be a
sine qua non. Despite this latter requisite, the plaintiff has not demonstrated employment by any evidence at all. The majority would compel the insurer to accept a risk it did not contract to accept, i.e., one who by the very terms of the policy, was excluded. For what it is worth, the defendant’s brief maintains that plaintiff was not only never an employee, he was fraudulently represented as such solely because, as a brother of the corporate president, it was schemed that he be brought within the employee group insurance coverage. Thus) there is