Opinion
No. 570750/12.
2013-05-21
Alan GREEN, Plaintiff–Respondent, v. 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.
Present: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
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 A.D.2d 123 [2003];Ezra v. Life Ins. Co. of N. Am., 298 A.D.2d 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 A.D.2d 492 [2001] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.