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Neuwirth v. Blue Cross & Blue Shield of Greater New York

62 N.Y.2d 718 Court N.Y. Decision date 1984-05-03 English

Judges Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in memorandum.

Contents

Majority

p. 718
Marvin R. Neuwirth, as Executor of Kitty Neuwirth, Deceased, Respondent, v Blue Cross & Blue Shield of Greater New York, Blue Cross Association, et al., Appellants.
Argued March 23, 1984;
decided May 3, 1984
p. 719

Headnote

APPEARANCES OF COUNSEL
John Colucci, Ellen B. Levin, John L. Shurtleff and Jerrold I. Ehrlich for appellants.
Louis S. Ederer and Marvin S. Cowan for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and, on defendants’ stipulation, judgment granted in favor of plaintiff.

The burden of proving that a claim falls within the exclusions of an insurance policy rests with the insurer (see International Paper Co. v Continental Cas. Co., 35 NY2d 322 , 327; Prashker v United States Guar. Co., 1 NY2d 584 , 594). Accordingly, the trial court properly ordered a new trial after it recognized that it had erroneously charged the jury that the insured’s representative had the burden of proof as to the application of the exclusions.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in memorandum.

Order affirmed, etc.

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