Ezrav.Life Insurance Co. of North America

Appellate Division of the Supreme Court of New York, First DepartmentOct 22, 2002
748 N.Y.S.2d 481 (N.Y. App. Div. 2002)
748 N.Y.S.2d 481298 A.D.2d 267

1978

October 22, 2002.

Order, Supreme Court, New York County (Marylin Diamond, J.), entered on or about July 9, 2001, which, to the extent appealed from as limited by plaintiff's brief, denied plaintiff's motion for summary judgment seeking retrospective long-term disability payments for the period from May 9, 1998 to April 3, 2001, unanimously affirmed, without costs.

JOEL S. EZRA, for plaintiff-appellant.

BARBARA M. MAISTO, for defendant-respondent.

Before: Tom, J.P., Ellerin, Lerner, Rubin, Gonzalez, JJ.


The divergence of opinion expressed by the parties' experts precludes summary judgment. Contrary to plaintiff's argument, the facts that defendant's first expert did not examine plaintiff's medical records until August, 1999, and that defendant's second expert did not examine plaintiff until April, 2001, do not entitle plaintiff to summary judgment as to either of the corresponding time periods. Defendant's expert affidavits raise a triable issue of fact as to whether plaintiff remained disabled, pursuant to the terms of the insurance policy, for any period of time subsequent to May 8, 1998, the date when her disability payments terminated.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.