Opinion
March 2, 1987
Appeal from the Supreme Court, Westchester County (Slifkin, J.).
Ordered that the judgment and order are affirmed, with costs.
Patrick Beece, the 52-year-old deceased, was involved in an automobile accident on February 12, 1980, and shortly thereafter died. Beece's widow, the beneficiary under an insurance policy issued by the defendant, filed a claim to recover accidental death benefits pursuant to the policy, to which she would be entitled if the insured "sustain[ed] accidental bodily injuries and * * * suffer[ed] the loss of life * * * as a direct result of such injuries and independently of all other causes". The defendant refused to make this payment, asserting that the death of the insured fell within an exclusion to the policy, i.e., that it resulted from "[d]isease or bodily or mental infirmity".
Bearing in mind that the weight to be accorded the conflicting testimony of experts is a matter peculiarly within the province of the jury (see, Sternemann v. Langs, 93 A.D.2d 819), we conclude that "the jury [was] authorized to find upon the evidence that the condition of [the deceased's heart] at the time of the accident was merely a predisposing tendency which, as a consequence of the accident", contributed to his death (McGrail v. Equitable Life Assur. Socy., 292 N.Y. 419, 427, rearg denied 293 N.Y. 663), and that, therefore, the plaintiff is entitled to recover under the policy (see, Burr v. Commercial Travelers Mut. Acc. Assn., 295 N.Y. 294; McMartin v. Fidelity Cas. Co., 264 N.Y. 220, rearg denied 264 N.Y. 671; Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81; Daniel v. Allstate Life Ins. Co., 71 A.D.2d 872).
The defendant's remaining contention with respect to the court's charge is without merit, since it neither prejudiced the defendant nor shifted the burden of proof (see, Norfleet v. New York City Tr. Auth., 124 A.D.2d 715; Tenczar v. Milligan, 47 A.D.2d 773). Mollen, P.J., Lawrence, Kunzeman and Sullivan, JJ., concur.