Bizarre Claim of Assumed Risk Rejected

During or after a divorce, the plaintiff alleged that the defendant had terminated a joint annuity account and withdrawn the money, leaving him with a $37,000 tax liability.
The defendant moved for summary judgment dismissing the case, claiming that when the plaintiff agreed to enter into joint annuity contract, he “necessarily assumed the risk of pecuniary injury.”

The Second Department rejected that argument, finding that the assumption of risk argument was limited to claims involving “athletic or recreational activities.”

One imagines that no party entered into the annuity contract expecting to be swindled. While the Second Department’s decision is correct on the law, without much effort, its decision could have been comprehensive by also addressing the bizarre claim in relation to the facts of the parties’ annuity. Perhaps the Record was not sufficiently developed to allow that.

Ballow v. Lincoln Financial Corp.