Ezra v. Life Insurance Co. of North America

Order, Supreme Court, New York County (Marylin Diamond, J.), entered on or about July 9, 2001, which, to the extent appealed from as limited by plaintiffs brief, denied plaintiffs motion for summary judgment seeking retrospective long-term disability payments for the period from May 9, 1998 to April 3, 2001, unanimously affirmed, without costs.

The divergence of opinion expressed by the parties’ experts precludes summary judgment. Contrary to plaintiffs argument, the facts that defendant’s first expert did not examine plaintiff’s medical records until August 1999, and that defendant’s second expert did not examine plaintiff until April 2001, do not entitle plaintiff to summary judgment as to either of the corresponding time periods. Defendant’s expert affidavits raise a triable issue of fact as to whether plaintiff remained disabled, pursuant to the terms of the insurance policy, for any period of time subsequent to May 8, 1998, the date when her disability payments terminated. Concur — Tom, J.P., Ellerin, Lerner, Rubin and Gonzalez, JJ.