Opinion
October 26, 1970
Appeal from a judgment of the Supreme Court, Ulster County, in favor of respondent, entered upon a decision of the court at a trial term, without a jury. The trial court found that claimant, who is totally disabled having had his leg amputated, was entitled to the payment of benefits under a mortgage insurance policy issued by appellant. We agree with its conclusion. The case turns on whether respondent's disability resulted from diabetes mellitus and thus recovery is precluded by an exclusionary provision of the policy, or if gangrene, the primary cause of amputation, can be considered to be a separate condition or disease. In our opinion it can. It is clear from the medical testimony that even assuming that the gangrene were caused by the diabetes, respondent's loss of limb was a result of the gangrene and not the direct result of the diabetes, the condition for which he was being treated within six months previous to the effective date of the policy (see Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81). Moreover, it is obvious from the medical testimony in the case that gangrene is not unique to diabetics, nor is the gangrenous condition suffered by diabetics of a particular type. And, the "resulting from" language of the exclusionary clause in question cannot reasonably be so broadly construed as to make gangrene the same disease as diabetes. Judgment affirmed, with costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.