MAHLER v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY


267 A.D.2d 146 (1999)

700 N.Y.S.2d 15

STEPHEN R. MAHLER, Respondent-Appellant, v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, Appellant-Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided December 21, 1999.


No issue of fact exists as to whether the two-year incontestability clause was tolled. Such a toll requires that plaintiff be "disabled" during the incontestability period, which, under the policy's definitions, means that the insured must be, among other things, under "the regular and personal care of a physician * * * for the condition causing the disability". Here, while defendant shows that plaintiff had been treated for various conditions prior to the effective date...

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