Niccoli v. Monarch Life Insurance , 36 N.Y.2d 892 ( 1975 )

Memorandum. The policy of insurance covered plaintiff’s occupation as physician and surgeon. There was evidence that plaintiff was disabled from performing his responsibilities as a surgeon during the two-year period .insured by the policy. What remained then was an issue of fact whether plaintiff’s disability satisfied the policy standard defining "total disability” as the "complete inability of the Insured to engage in his regular occupation.” Under an adequate charge the jury found that there was such disability. The Appellate Division having affirmed, the issue of fact is beyond review in this court (CPLR 5501, subd [b]; Kingsland v Erie County Agric. Soc., 298 NY 409, 415; see Cohen and Karger, Powers of the New York Court of Appeals, p 452).

Defendant’s reliance on McGrail v Equitable Life Assur. Soc. (292 NY 419) is to no avail. In that case, under a more restrictive clause than that involved in this case, the court held that the clause must be read reasonably and sustained recovery for the plaintiff (pp 424-426).

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.