SOCIETY OF NEW YORK HOSPITAL v. BURSTEIN

Determination of the Appellate Term affirming the judgment of the Municipal Court, First District, in favor of the third-party plaintiff in the sum of $504.06 after a nonjury trial, unanimously reversed, on the law and on the facts, with $50 costs to third-party defendant-appellant, and the complaint dismissed. The issue in this case is whether the third-party defendant-appellant Associated Hospital Service of New York (AHS) is obligated under its family policy issued to the third-party plaintiff to pay the hospital bill incurred by his wife. AHS denies liability by reason of the following exclusion clause in its policy: "ARTICLE IV — EXCLUSIONS 1. Hospital Service shall not be provided for: * * * hospital admissions primarily for diagnostic X-ray or laboratory examinations or other diagnostic studies". The third-party plaintiff has failed to establish that the admission was not primarily for diagnostic studies and that the hospitalization accorded his wife was not barred by the exclusion provision. ( Whitlatch v. Fidelity Cas. Co. of New York, 149 N.Y. 45; Sagorsky v. Malyon, 4 A.D.2d 1016; Klar v. Associated Hosp. Serv. of N.Y., 24 Misc.2d 559; Tasman v. Associated Hosp. Serv. of N.Y., 19 Misc.2d 809.) Under the provisions of CPLR 5522, we should, on the appeal from a judgment rendered by the court without a jury, unless we affirm, grant the judgment which the court below ought to have granted. ( Malave v. MVAIC, 19 A.D.2d 606; Bruno v. Kosnac, 13 A.D.2d 650; see former Civ. Prac. Act, § 584, subd. 2; McKinney's Cons. Laws of N.Y., Book 7B, rule 5522, pp. 341-343; 7 Weinstein-Korn-Miller, New York Civil Practice, par. 5522.02.)

Concur — Breitel, J.P., Rabin, Valente, McNally and Steuer, JJ.