Green v Combined Life Ins. Co. of N.Y.

[*1] Green v Combined Life Ins. Co. of N.Y. 2013 NY Slip Op 50816(U) Decided on May 21, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 21, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570750/12.

Alan Green, Plaintiff-Respondent,

against

Combined Life Insurance Company of New York, Combined Life Insurance Company of America, and Robert W.Downie, Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, New York County (Kathryn E. Freed, J.), entered February 17, 2012, 2012, which denied their motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Kathryn E. Freed, J.), entered February 17, 2012, modified to grant that branch of defendants' motion seeking summary judgment dismissing the complaint as against defendant Downie; as modified, order affirmed, without costs.

We sustain so much of the order on appeal as denied the defendant insurer's motion for summary judgment dismissing the complaint as against it. The welter of conflicting evidence presented by the parties raises several unresolved triable issues, including whether plaintiff is "totally disabled" as that term is defined in the governing disability insurance policy and whether plaintiff's claimed disability(ies) "ar[ose] out of, [or were] caused ... or contributed by" plaintiff's preexisting spinal condition (see Estate of Jervis v Teachers Ins. & Annuity Assn., 306 AD2d 123 [2003]; Ezra v Life Ins. Co. of N. Am., 298 AD2d 267 [2002]).

We modify to the extent of dismissing the complaint against defendant Downie, the physician who examined plaintiff on behalf of the defendant insurer. An actionable physician-patient relationship does not exist where a doctor conducts a medical examination at the behest of an insurer (see Savarese v Allstate Ins. Co., 287 AD2d 492 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: May 21, 2013