Cohen v. U.S. Life Insurance , 531 N.Y.S.2d 273 ( 1988 )

Kupferman, J.,

dissents in part in a memorandum as follows: There is no need to dismiss and replead.

As Judge Lehner indicated in his opinion at the I.A.S. Part denying the motions, for the purpose of those motions now granted by the majority of this court the "defendants consented to the court deeming the complaint to have been amended to contain allegations asserting unsuccessful searches for Mr. Cohen.” Accordingly, Judge Lehner granted time to amend the complaint.

It is now more than five years, under any way of looking at it, that Philip Cohen has been absent. EPTL 2-1.7 covers it. The problem of "specific peril” comes into play only if it is sought to show that less than five years should apply. Among other evidence of absence is the report of the guardian ad litem appointed by the Surrogate.

With respect to the contention of the defendant U.S. Life, which argues that its policy lapsed on November 27, 1984, it should be noted that along with defendant Standard Security, U.S. Life sought and was given permission to intervene and appeared in the Surrogate’s Court on the issue of the absence by "specific peril” of Philip Cohen. The Surrogate’s decree set July 11,1980 as the date of death.

The only real question is whether Philip Cohen is alive or dead. The defendants contend that he has deliberately disappeared.

To the extent that the majority states there should now be a full hearing on the question, in light of EPTL 2-1.7, I do not dissent, but I see no reason to impose further procedural ramifications.