Opinion
Argued September 22, 1978
Decided October 31, 1978
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, HAROLD J. HUGHES, J.
William M. Burke for appellant.
William P. Soronen, Jr., for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In support of its cross motion for summary judgment, defendant Aetna Life Insurance Company came forward with evidence establishing that plaintiff's coverage under the group insurance policy automatically terminated prior to the onset of her disability. It then became incumbent upon plaintiff to demonstrate, by affidavit or other available proof, the existence of a triable issue of fact as to whether she fell within a class of employees selected by the hospital as eligible for coverage (e.g., Kuehne Nagel v Baiden, 36 N.Y.2d 539, 543-544; Indig v Finkelstein, 23 N.Y.2d 728, 729). Having failed to do so, plaintiff must suffer the consequences of summary judgment.
We decline to attribute any significance to defendant St. Mary's inadvertent payment of premiums on the policy for some months after coverage had terminated. Unrefuted evidence indicates that the payments were made as a result of administrative or clerical oversight which, under the terms of the policy, had no bearing upon termination of the insurance.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.