Opinion
June 25, 1974
Order, Supreme Court, New York County, entered December 11, 1973, denying defendant's motion for an order permitting it to serve subpoenas upon and to take the depositions of two physicians not parties to the action, unanimously modified on the law and the facts to grant the motion, and otherwise affirmed, without costs and without disbursements. The corporate plaintiff was a beneficiary under a life insurance policy which has been paid. However, there is in issue a claim for double indemnity and accidental death. The defendant's contention is that death was caused by or contributed to by prior heart disease of the deceased, while the plaintiff sought recovery on the theory that death was caused by accident. The plaintiff sought a further examination of the defendant and production thereat of relevant records, which motion has been granted, and which we herewith affirm. Plaintiff's counsel indicated to the defendant that it was prepared to exchange information but the defendant resisted a further examination. The defendant is entitled to examine the two nonparty physicians who had seen the decedent in the three years preceding his death (see Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403; Sherwood v. Eli Lilly Co., 36 A.D.2d 533), and this might already have been accomplished in accordance with the plaintiff's counsel's offer of mutuality. Settle order on notice with respect to the time and place, etc. for the depositions.
Concur — Markewich, J.P., Nunez, Kupferman, Tilzer and Lane, JJ.