Opinion
September 29, 1949.
Appeal from Supreme Court.
Present — Foster, P.J., Heffernan, Deyo, Santry and Bergan, JJ.
Defendant contends that the policy of insurance is void on the ground that insured had been attended and treated by a physician within two years prior to the issuance of the policy. In support of its motion defendant has submitted but two affidavits, one by its attorney which merely shows the fact of the commencement of the action and that in his opinion there is no merit in plaintiff's claim. The other affidavit is by a physician who deposes that he treated the insured on two occasions in the month of January, 1948. There is nothing in this affidavit to indicate the nature of the treatment or why treatment was necessary. In addition defendant has annexed to its moving papers two medical reports, unverified, which have no evidentiary value. The policy recited that the condition of flu, from which it is said the insured suffered in 1946, is waived. Defendant failed to annex to its moving papers the application for the policy of insurance. It should have done so. Defendant's motion was properly denied. There are issues of fact here which should be submitted to and resolved by a jury. Order unanimously affirmed, with $25 costs and disbursements.