Blank v. Insurance Co. of North America

OPINION OF THE COURT

Memorandum.

Judgment affirmed, with $25 costs.

Plaintiff brings this suit to recover accident benefits allegedly due under a group policy of insurance. It was undisputed that plaintiff suffered a stroke while undergoing a cardiac catheterization, recommended after he had experienced chest pains. It is our opinion that plaintiff adduced ample evidence to establish that the stroke was the result of an accident (see, Miller v Continental Ins. Co., 40 NY2d 675) and that the procedure was a cause of the stroke. Moreover, given the testimony of plaintiff’s medical expert that the stroke was caused by a chipping off of part of plaintiff’s artery during the procedure as well as the failure of defendant to offer any evidence in rebuttal, there is no basis to disturb the finding of the jury that this was the sole producing cause of the stroke.

(dissenting). Widlitz, J., dissents and votes to reverse the judgment and dismiss the complaint in the following memorandum:

*978It was uncontroverted, that plaintiff was suffering from “severe” arteriosclerosis, specifically atherosclerosis, prior to undergoing the catheterization procedure. By testifying that “during the procedure, a catheter within plaintiff’s heart chipped off part of the inside of the artery and went to the brain, causing a stroke”, plaintiff’s expert conceded that the arteriosclerosis contributed to the occurrence since it is only when there is a buildup of lipid deposits within such an artery that such a chip can occur. Thus, plaintiff failed to prove that his arteriosclerosis was not a factor. In light of the language of the policy, the complaint must therefore be dismissed.

Farley, P. J., and Di Paola, J., concur; Widlitz, J., dissents in a separate memorandum.