Opinion
January 18, 1973
Appeal from the Erie Special Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Moule and Henry, JJ.
Order unanimously modified in accordance with memorandum and, as so modified, affirmed, without costs. Memorandum: In its answer to plaintiff's complaint in this action to recover the death benefit under a life insurance policy, defendant alleges as a defense that the insured made material misrepresentations in his application for insurance by stating that he had not been under medication or on a special diet in the preceding year, that he had not had nor been treated for high blood pressure and had not sought treatments or consultation by or with a physician within three years. Special Term erroneously limited examinations of the two physicians who had treated decedent to these alleged misrepresentations. CPLR 3101 (subd. [a]) requires full disclosure of all evidence material and necessary in the defense of an action. If there is any possibility that the information sought in good faith will have a possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material in the defense (3 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3101.07; Matter of Comstock, 21 A.D.2d 843, 844). "The words, `material and necessary' are * * * to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity * * * to permit discovery of testimony `which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable.'" ( Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406-407.) The order should be modified by deleting the second decretal paragraph thereof, and substituting for the third paragraph a direction that the witnesses produce at the examination all medical records in their possession relating to decedent's physical condition and their care and treatment of him.