George Leefe v. Public Service Mutual Insurance Company

Appeal by plaintiff from an order of the Supreme Court at Special Term in Ulster County, which granted defendant insurance company's motion for summary judgment dismissing as against it the complaint in an action seeking, nter alia, to reform a liability insurance policy so as to include within the coverage a rowboat involved in a fatal accident. Essential to appellant's case was proof that defendant Cherney was the respondent insurance company's agent and not merely a broker. The only moving affidavits submitted upon that issue were those of respondent's attorney, who had no knowledge of the facts, and of respondent's area agent, who countersigned the policy and whose affidavit does no more than detail the steps taken in connection with the writing of this particular policy, and does not in any way touch the factual issue of agency or state any facts as to the relationship, or the absence of any relationship, between the insurance company and defendant Cherney or between defendant Cherney and himself. The opposing affidavits are likewise devoid of evidentiary facts. The affidavits being insufficient, the case for summary judgment depends entirely upon the pretrial testimony of defendant Cherney taken at the instance of appellant and submitted by respondent in support of this motion. In a somewhat unresponsive answer to a question by appellant's attorney, defendant Cherney said that she was not an agent of respondent; and she replied in the negative to the question whether she had an ""arrangement"" with respondent for the ""writing"" of policies ""issued"" by it. Although respondent's counsel repeatedly objected to inquiries of this nature as calling for conclusions, he now relies upon the answers as constituting a proper and sufficient factual basis