Dimmock v. Metropolitan Life Insurance

277 A.D.2d 851

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 1950
• Status: Published

Opinion

Order unanimously modified so as to permit an examination before trial of defendant’s examining physician only, Dr. Herman Robbins, concerning the subject matter of the first item of plaintiff’s notice, that was allowed by Special Term, viz.: “ The state of health of plaintiff’s testator at the time he made application for the policy upon which this action is brought ”, in connection with which the written report to defendant of the examination of the insured by said physician should be produced for use under section 296 of the Civil Practice Act. The condition of insured’s health at the time mentioned may bear upon the materiality of the misrepresentations alleged in the answer, that insured previously suffered from an ailment or disease of the heart or lungs for which he had been treated by a physician or physicians. The clinics, hospitals, physicians, healers or practitioners not named in the life insurance application, alleged in the answer to have been consulted by insured or by whom he was treated within the five years preceding his application for said policy, would more appropriately be the subject of a demand by plaintiff for a bill of particulars of the affirmative defense contained in the answer. Order unanimously modified so as to deny plaintiff’s motion to take the deposition of defendant, accompanied by production of books, records and papers, except in the respects hereinbefore stated as to which the motion is granted. Settle order on notice. Present — Peek, P. J., Glennon, Callahan, Van Voorhis and Shientag, JJ,