Opinion
September 19, 1977
In an action on an insurance policy to recover damages for the loss of an eye allegedly due to an accident, the plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered December 2, 1976, which is in favor of defendant, upon the trial court's dismissal of the complaint at the end of the entire case, at a jury trial, for failure to present a prima facie case. Judgment reversed, on the law, and new trial granted, with costs to abide the event. In our opinion, under the facts of this case, a jury could determine that the loss of the eye was caused by an accident within the meaning of the policy. The depositing of the infected animal matter on the plaintiff-appellant's eye while he was working was totally unforeseen and unexpected, and a jury could properly find that that was the sole contributing cause of the infection which resulted in the loss of the eye. We note that the plaintiff's expert testified that the "bleb" on his eye, left from a recent cataract operation, was harmless and merely provided an opening through which the bacteria could infect the eye. This was nothing more than a predisposing weakness or frailty in the eye which made it more susceptible to infection by harmful bacteria (see Silverstein v Metropolitan Life Ins. Co., 254 N.Y. 81). But it was not, under the Silverstein case, a contributing cause of the loss of the eye. Cohalan, J.P., Titone, Hawkins and Suozzi, JJ., concur.