Miller v. Continental Insurance

Appellate Division of the Supreme Court of New York

Miller v. Continental Insurance

44 A.D.2d 604, 353 N.Y.S.2d 526, 1974 N.Y. App. Div. LEXIS 5394

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 25, 1974

StatusPublished

This text of 44 A.D.2d 604 (Miller v. Continental Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Continental Insurance, 44 A.D.2d 604, 353 N.Y.S.2d 526, 1974 N.Y. App. Div. LEXIS 5394 (N.Y. Ct. App. 1974).

Pincite

Opinion

In. an action to recover death benefits under a policy of group accident insurance, defendant appeals from an order of the Supreme Court, Queens County, dated September 17, 1973, which denied its motion for pretrial examinations of the insured’s father and two brothers and a further pretrial examination of his mother, the plaintiff. beneficiary. Order reversed, without costs, and motion granted to the extent of permitting defendant to examine the insured’s father and two brothers and to further examine plaintiff, before trial, the further examination of plaintiff to be limited, however, to the issue of the insured’s illness during May and June, 1970. The examinations shall be conducted within 30 days after entry of the order to be made hereon at the place indicated in defendant’s notice of motion at a time or times to be set forth in a written notice or notices of not less than five days, to be given by defendant, or at such other place and time or times as the parties may agree. Thereafter, the parties shall proceed to trial (rule 675.7 of the rules of this court [22 NY'CRR 675.7]). In our opinion, it was an improvident exercise of discretion for Special Term to deny defendant an opportunity to conduct examinations before trial of the insured’s father and two brothers. Furthermore, defendant should be permitted to conduct a further examination before trial of plaintiff. At a previous examination plaintiff testified that the insured was not ill or confined to his home at any time during the two years preceding his death. When plaintiff served defendant with a copy of the transcript, plaintiff indicated that she then recalled that her son was ill and confined to his home sometime in May and June, 1970. In our opinion, defendant should be given an opportunity to question plaintiff with respect to her son’s illness during May and June, 1970. Hopkins, Acting P. J.,

Cohalan, Christ, Brennan and Munder, JJ., concur.

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In. an action to recover death benefits under a policy of group accident insurance, defendant appeals from an order of the Supreme Court, Queens County, dated September 17, 1973, which denied its motion for pretrial examinations of the insured’s father and two brothers and a further pretrial examination of his mother, the plaintiff. beneficiary. Order reversed, without costs, and motion granted to the extent of permitting defendant to examine the insured’s father and two brothers and to further examine plaintiff, before trial, the further examination of plaintiff to be limited, however, to the issue of the insured’s illness during May and June, 1970. The examinations shall be conducted within 30 days after entry of the order to be made hereon at the place indicated in defendant’s notice of motion at a time or times to be set forth in a written notice or notices of not less than five days, to be given by defendant, or at such other place and time or times as the parties may agree. Thereafter, the parties shall proceed to trial (rule 675.7 of the rules of this court [22 NY'CRR 675.7]). In our opinion, it was an improvident exercise of discretion for Special Term to deny defendant an opportunity to conduct examinations before trial of the insured’s father and two brothers. Furthermore, defendant should be permitted to conduct a further examination before trial of plaintiff. At a previous examination plaintiff testified that the insured was not ill or confined to his home at any time during the two years preceding his death. When plaintiff served defendant with a copy of the transcript, plaintiff indicated that she then recalled that her son was ill and confined to his home sometime in May and June, 1970. In our opinion, defendant should be given an opportunity to question plaintiff with respect to her son’s illness during May and June, 1970. Hopkins, Acting P. J.,

Cohalan, Christ, Brennan and Munder, JJ., concur.

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Bluebook (online)

44 A.D.2d 604, 353 N.Y.S.2d 526, 1974 N.Y. App. Div. LEXIS 5394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-continental-insurance-nyappdiv-1974.