David Trager et al., Plaintiffs, v. United Medical Service, Inc., et al., Defendants, 45 Misc. 2d 547

John H. Galloway, Jr., J. This is a motion by the defendants pursuant to CPLR 3212 (subd. [a]) for an order granting

summary judgment dismissing the complaint on the merits. This is an action by the plaintiffs for $3,653.15 alleged to be due to the plaintiffs from the defendants for hospital and surgical services under A. H. S. and U. M. S. contracts. The contracts under which the plaintiffs seek to recover were issued with an effective date of August 28, 1961. The hospital and medical services for which the plaintiffs seek recovery were rendered in February and March of 1962. The defense contends that pursuant to

article IV-D-l of the contract they may properly decline to extend benefits to these plaintiffs because the ailment for which the plaintiff, David Trager was hospitalized in February and March of 1962 was a pre-existing condition, benefits for which the defendants are not liable under the afore-mentioned section, because the subscriber had not completed 11 consecutive months of continuous coverage under this contract or under this contract and a previous A. E. S.-U. M. S. contract. The plaintiffs contend that because the plaintiff David Trager had received benefits under prior A. H. S.-U. M.

S. contracts for the same condition in 1956, the defendants are not entitled to decline benefits under the present contract. In our opinion the plain intendment of the current contract is that for coverage to apply, in view of the limitations set forth in

article IV, such coverage, whether under this contract or under this contract and a prior contract, must be consecutive and continuous. The facts presented herein indicate that there was a lapse in coverage prior to August 28, 1961, extending from September, 1960 to August 27, 1961 and this does not appear to be denied by the plaintiffs. Accordingly, their coverage was not consecutive and continuous for the required period of 11 months prior to the hospitalization for which benefits are now claimed. In our opinion there appear to be no triable issues of fact — (1) with respect to the

interpretation of the contract exclusion of benefits for a pre-existing condition where the hospital stay commences and services are rendered prior to expiration of 11 consecutive months of continuous coverage under the current and prior contracts, or (2) with respect to the substantial sameness or similarity of the condition for which plaintiff David Trager was hospitalized in February and March, 1962 and the conditions from which he admittedly suffered prior to August 28,1961, the effective date of the subject contracts. Accordingly, defendants’ motion for

summary judgment must he and the same hereby is in all respects granted.