Copulsky v. Berkshire Life Insurance

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered November 9, 2000, which, inter alia, granted plaintiffs motion for summary judgment on his complaint for defendant insurer’s breach of the disability policy it issued to him, unanimously affirmed, with costs. Appeal from the so-ordered transcript of proceedings before the same court and Justice, entered December 18, 2000, unanimously dismissed, without costs, as academic.

In light of defendant insurer’s concession that plaintiff orthopedic surgeon is no longer able to perform orthopedic surgery, plaintiff has successfully demonstrated, as a matter of law, that he is unable to perform “ ‘the substantial and material duties’ ” of his regular job or jobs, as they existed before he *231sustained injury (see, Acquista v New York Life Ins. Co., 285 AD2d 73, 76; see also, Primavera v Rose & Kiernan, 248 AD2d 842). Accordingly, plaintiff was properly found entitled to total disability benefits under the policy issued to him by defendant. Concur — Sullivan, J.P., Rosenberger, Lemer, Rubin and Buckley, JJ.