Rubin v. Equitable Life Assurance Society of United States

In an action to recover disability benefits under provisions contained in life insurance policies and to reinstate certain insurance policies, order granting motion of defendant for an examination before trial of three physicians and a hospital modified on the law by striking out the subject matter of the examinations, the direction for production of records and the phrase “ with any objection based upon physician’s privilege reserved to the plaintiff to be passed upon at the time of said examination ” wherever it appears in said order; and by providing, in lieu thereof, as to the subject matter of examination of the physicians, the time or times that they attended plaintiff professionally, together with dates and duration, and whether plaintiff was sick at such time or times; and, as to the hospital, date of entry or entries of plaintiff therein, duration of his stay or stays and dates of his discharge or discharges. Production of records pertinent to the subject matter of the foregoing examinations is directed. As so modified the order is affirmed, without costs, the examination to proceed on ten days’ notice. Even though plaintiff has alleged in his complaint that he is afflicted with a heart ailment and that such allegation is the foundation of his causes of action, it is not a waiver of the privilege afforded by section 352 of the Civil Practice Act which may only be accomplished in open court on the trial or by stipulation. (Civ. Prac. Act, § 354.) If disclosure is made at the trial by plaintiff (Apter V. Home Life Insurance Company, 266 N. Y. 333; Steinberg v. New York Life Ins. Co., 263 N. Y. 45; Hethier v. Johns, 233 N. Y. 370; Capron v. Douglass, 193 N. Y. 11) defendant may apply, in the light of such waiver, for suspension for a reasonable length of time in which to examine and produce physicians who attended him and hospitals in which he was maintained with respect to that ailment. Close, P. J., Hagarty, Johnston, Adel and Lewis, JJ., concur.