Opinion
March 8, 1991
Appeal from the Supreme Court, Ontario County, Curran, J.
Present — Callahan, J.P., Doerr, Green, Pine and Balio, JJ.
Order unanimously reversed on the law without costs, cross motion granted and complaint dismissed. Memorandum: Defendant's cross motion for summary judgment should have been granted. Defendant presented documentary evidence that one of the policies was not accepted by plaintiff; therefore, it never became effective. As to the remaining five policies, prior to commencing this action plaintiff surrendered them and received their cash value. The election to surrender documents executed by plaintiff provide that the company's liability "except for the amount of the cash value" ceased upon acceptance of the offer to surrender. Plaintiff knew before she executed these surrender documents that loans had been taken against her policies, allegedly without her consent; therefore, her execution of the documents operates to bar this action (see, Telford v Metropolitan Life Ins. Co., 223 App. Div. 175, 181, affd 250 N.Y. 528).