Canestraro v. Metropolitan Life Insurance

Taylor, J. This is an action by the named beneficiary upon an industrial life insurance policy to recover the amount of the death benefit therein provided, which policy was issued by the defendant on October 1, 1940, to the plaintiff’s mother who died on December 29, 1940. The policy contains the standard provisions permitted for industrial life insurance policies under Insurance Law, section 163, subdivision 3, paragraph (b). The application was not attached to the policy. No reference to previous hospital or medical treatment of the insured was endorsed on the policy by the defendant. The defendant — for its defense — alleged in its answer and established upon the trial that the insured was confined in a hospital and received medical treatment from May 21,1939, to June 2,1939. The plaintiff was then under the burden of showing either that the condition occasioning such treatment or attention was not of a serious nature or was not material to the risk (see McDermott v. Metropolitan Life Ins. Co., 8 N. Y. S. 2d 896, affd. 261 App. Div. 950) or that the defendant had waived its right to declare the policy void or was estopped from asserting such right (see Hill v. Metropolitan Life Ins. Co., 259 App. Div. 278; DeCesare v. John Hancock Mut. Life Ins. Co., 256 App. Div. 1036, affd. 281 N. Y. 769; Black Co. v. London Guarantee & Accident Co., Ltd., 190 App. Div. 218, affd. 232 N. Y. 535; Salamida v. John Hancock Mut. Life Ins. Co., 148 Misc. 702, affd. 241 App. Div. 636). [678] The plaintiff’s proof of the insured’s continuous employment during the year 1940 was insufficient to raise an issue of fact as to whether the condition, for which the insured had received hospital and medical treatment in 1939, was not of a serious nature or was not material to the risk. The plaintiff’s proffered proofs of waiver or estoppel were erroneously excluded. Error was also committed in excluding the physician’s statement which the plaintiff had submitted to the defendant as a part of the proofs of death. (Rudolph v. John Hancock Mut. Life Ins. Co., 251 N. Y. 208; Wachtel v. Equitable Life Assurance Society, 266 N. Y. 345; Winiarski v. John Hancock Mut. Life Ins. Co., 241 App. Div. 284; Belsky v. New York Life Ins. Co., 255 App. Div. 288, affd. 280 N. Y. 614.) The judgment should be reversed on the law and facts and a new trial granted, with costs to the defendant-appellant to abide the event.