
    Stanley S. Lieberman, as Assignee of Maxwell Lieberman, Appellant, v. National Casualty Company, Respondent.
    Supreme Court, Appellate Term, First Department,
    March 31, 1966.
    
      
      Stanley S. Lieberman, appellant, in person. Bowling & Bowling (Robert F Bowling of counsel), for respondent.
   Per Curiam.

Under the Professional Major Hospital and Nurse Expense Policy before us, defendant agreed to pay 80% of the covered expenses incurred during- the benefit period in excess of $500 — ‘ ‘ the applicable deductible * * * as the result of any one accident or sickness ”. Part II of the policy provides that at the end of any period of three consecutive months during which the covered expenses are less than $50, recovery from an injury or sickness “shall be presumed ”. Part III of the policy provides that successive disablements from an injury or sickness “ shall be considered as resulting from one accident or sickness” unless the disablements are separated by a period of three consecutive months during which the covered expenses are less than $50. We find the provisions of Part II and Part III ambiguous. As such they must be construed most strongly against defendant.

We read Part III to provide, for the benefit of the insured, that successive disablements are to be deemed resulting from one sickness — thus calling for only one deduction of $500 — if the disablements take place within a period of three months. If more than three months separate the disablements, recovery is ‘ ‘ presumed ’ ’ but not conclusively established; and the insured is put to his proof to show that he had not in fact recovered during this period.

If the presumption was intended to be conclusive, or if successive disablements separated by a period of three months are to be considered as resulting from more than one sickness, defendant could easily have so stated in plain language. Since the facts are not in dispute and the record shows that plaintiff’s assignor was hospitalized twice as a result of the same sickness, defendant was not entitled to deduct $500 from the second hospital bill.

Order granting defendant summary judgment should be reversed, with $10 costs; defendant’s cross motion for summary judgment denied, and plaintiff’s motion for summary judgment granted.

Tilzer, J. P.

(dissenting). The insured, Dr. Lieberman, entered the hospital on November 11, 1961 and left on June 5, 1962. He was paid in accordance with the terms of the policy. The insurer deducted the applicable deductible, $500, and paid 80% of the covered hospital expenses.

On October 27, 1962, the insured was admitted to the hospital again, four months and 22 days after his first confinement, where he remained until his death on December 24, 1962. The insurer paid again, deducting for a second time the $500 deductible. The issue is whether, within the terms of the policy, there were two sicknesses or one.

It is .true that Part II of the policy does not expressly provide that recovery of the insured shall be conclusively presumed from the passage of three months during which covered expenses are less than $50. Nevertheless, all ambiguity is removed by the language of Part III of the policy which provides that successive disabilities “ shall be considered as resulting from one accident or sickness, unless * * * (3) The disablements are separated by a period of three (3) consecutive months during which the incurred Covered Expenses are less than Fifty Dollars ($50).” When read together, the provisions clearly indicate that where three consecutive months intervene between two periods during which hospital expenses are less than $50, then the second period shall be considered as a separate benefit period” and shall be subject to the proper deductible.

I think it would be clear to the ordinary man buying hospital insurance that if he were hospitalized, left for home and for the next three months paid nothing or less than $50 for hospital expenses, and then had to be hospitalized again, the latter confinement would be a new period, a new accident or sickness.

The order granting the defendant insurer’s motion for summary judgment should be affirmed.

Hoestadteb., and Gold, JJ., concur; Tilzer, J. P., dissents in memorandum.

Order reversed, etc., and plaintiff’s motion for summary judgment granted.  