Mulvihill v. Mutual Benefit Life Insurance

Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term erred in denying defendant’s motion to examine certain non-party witnesses pursuant to CPLR 3101 (a) (4) on issues raised by defendant’s answer to plaintiffs suit as beneficiary to recover the proceeds under a group insurance policy covering his brother’s life. Defendant makes an adequate showing that it is necessary in preparing for trial that it examine decedent’s four office employees and decedent’s mother concerning decedent’s state of mental and physical health prior to his answering questions pertaining thereto on the policy application. Inasmuch as the defense of suicide has been pleaded, questions relating to defendant’s alleged prior intentional inhalation of nitrous oxide would also be relevant (see, Mogollon v South African Mar. Corp., 80 AD2d 636; Kelly v Shafiroff, 80 AD2d 601; Kenford Co. v County of Erie, 41 AD2d 586). We find, however, that Special Term properly exercised its discretion in denying the requested examination of decedent’s sister and Charles McElroy. Accordingly, we modify the order and grant the motion to the extent of permitting the examination of Alma J. White, Lynn C. Moran, Bonnie Fisher, Terry Zerrillo and Mrs. Donald E. Mulvihill. (Appeal from order of Supreme Court, Onondaga County, Tenney, J. — discovery.) Present — Dillon, P. J., Hancock, Jr., Doerr, Denman and O’Donnell, JJ.