Opinion
March 11, 1980
Order, Supreme Court, New York County, entered September 5, 1979, which, inter alia, granted defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, without costs or disbursements, to the extent of denying summary judgment to defendant as to the first cause of action, and with leave to plaintiff to amend said cause of action so as to bring her claim for monthly disability benefits current to the time of trial, and, except, as thus modified, affirmed. While we agree with Special Term's grant of summary judgment dismissing the causes of action seeking punitive damages, consequential damages and the present value of future benefits based on an anticipatory breach of the insurance contract, or, alternatively declaratory relief, an issue of fact is posed as to whether plaintiff is, pursuant to the policy, totally disabled from engaging "in any and every duty for which she is reasonably fitted by education, training, or experience." If it is found that she is so disabled, a determination must also be made as to whether "such total disability requires the regular care of a licensed physician." With regard to the latter issue, the affidavits show a divergence of opinion on whether psychiatric treatment by telephone constitutes an accepted mode of treatment. Thus, summary judgment should not have been granted on the first cause of action.
Concur — Murphy, P.J., Fein, Sullivan, Ross and Bloom, JJ.