27 A.D.2d 656 | N.Y. App. Div. | 1967
Order entered June 23, 1966, denying defendant’s motion to dismiss the first cause of action as time barred, unanimously affirmed, with $50 costs and disbursements to abide, the event. Special Term, in denying the aforesaid motion held that “ There is an issue respecting the date when the policy became effective and the period of plaintiff’s total disability.” While the policy provides that it “ shall not be in force unless and until the full first Policy Premium has been paid”, the application for such policy, which is incorporated by reference into the policy provides that upon the payment of such premium “the policy will take effect as of the Policy Date”. Consequently, we are obliged to hold that there is no triable issue as to when the policy became effective, and we hold as a matter of law that the policy became effective as of the issue date of January 13, 1964. However, the first cause of action cannot be dismissed as time barred since, while the policy provides that it shall be incontestable after it has been in force for a period of two years, it also excludes from the computation of such period any period during which the insured is totally disabled. There is a triable issue in that respect, inasmuch as the extent of the period during which the defendant was disabled has not been sufficiently established. Concur — Botein, P. J., Stevens, Steuer, Tilzer and Rabin, JJ.