— Ordеr unanimously modified and, as modified, affirmed, with costs to plaintiff, in accordancе with the following memorandum: In 1972 plaintiff purchased a disability income policy of insurance from defendant covering any sickness first manifesting itself during the term of the policy. In 1981 plaintiff lost most of his eyesight and was diagnosed as having retinitis pigmentosa. Plaintiff aрplied for disability benefits, which defendant denied because plaintiff’s illness had “manifested” itself prior to the effective date of the policy and hence wаs not a covered illness. The issue before us is whether defendant’s claim of noncoverage is barred by the incontestability provision of the insurance poliсy which, as required by statute, provides that after two years no claim shall be denied on the ground that a disease not excluded from coverage by name or sрecific description had existed prior to the effective date of сoverage (Insurance Law, § 164, subd 3, par [A], cl [2]). Defendant argues that the incontestability clause is not applicable because defendant does not seеk to deny coverage because the illness “existed” before the poliсy, but because the illness “manifested” itself before, and not during, the policy period and, therefore, could not be a covered illness. Although defendant’s contention has been accepted in other jurisdictions (see Massachusetts Cas. Ins. Co. v Forman, 516 F2d 425; Reaten v Paul Revere Life Ins. Co., 648 F2d 299; Allen v Aetna Life Ins. Co., 563 F2d 1240) and has been approved in dicta in New York (Mutual Life Ins. Co. of N. Y. v Hayden, 87 Mise 2d 1039,1044, affd on opn below
White v. Massachusetts Casualty Insurance
465 N.Y.S.2d 345
N.Y. App. Div.1983Check TreatmentAI-generated responses must be verified and are not legal advice.