SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
October 23, 1969
ELENA PETERSON, RESPONDENT,
NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, APPELLANT
Concur -- Stevens, P. J., Eager, McGivern, Markewich and McNally, JJ.
Order entered January 9, 1969, and order entered February 24, 1969, unanimously modified on the law, the facts and in the exercise of discretion, without costs or disbursements, so as to direct examination before trial of defendant-appellant, but in a manner conforming with the following provisions: The examination of the Chief Medical Director of the defendant is permitted, or of a knowledgeable assistant, as to the practice of the insurer with respect to the acceptance or rejection of similar risks. At such examination appellant shall produce any documentary proof on which appellant may plan to rely at trial, whether such proof be in the nature of supporting rules or manuals reflecting underwriting standards, or references to past experiences involving the same or diseases similar to the one at issue, to buttress the conclusion that if defendant had known the medical history of the insured the policy would not have been accepted; without prejudice, however, to such further applications as may be indicated, following such examination. (See Lindenbaum v. Equitable Life Assur. Soc. of United States, 5 A.D.2d 651; Metropolitan Life Ins. Co. v. Blum, 7 A.D.2d 488, affd. 9 N.Y.2d 954; Orenstein v. Metropolitan Life Ins. Co., 18 A.D.2d 1016; Greene v. United Mut. Life Ins. Co., 38 Misc. 2d 728, affd. 23 A.D.2d 720; Insurance Law, § 149, subd. 3.
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