NEUWIRTH v. BLUE CROSS BLUE SHIELD OF GREATER N.Y

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 N.Y.2d 322, 327; Prashker v United States Guar. Co., 1 N.Y.2d 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, WACHTLER, MEYER, SIMONS and KAYE concur in memorandum.

Order affirmed, etc.