We respectfully dissent in part. “[I]t is generally a question for the jury to determine whether a policyholder is totally disabled within the meaning of the policy provision” (Godesky v First Unum Life Ins. Co., 239 AD2d 547, 548 [1997], citing McGrail v Equitable Life Assur. Socy. of U.S., 292 NY 419, 425 [1944], rearg denied 293 NY 663 [1944]; see Niccoli v Monarch Life Ins. Co., 70 Misc 2d 147, 149-150 [1972], affd 45 AD2d 737 [1974], affd 36 NY2d 892 [1975]). We agree with the majority that plaintiff meets the first requirement of the policy definition of “total disability” as a matter of law. Plaintiff, due to injury or sickness, is unable to perform the substantial and material duties of his occupation as an orthopedic surgeon specializing in spinal surgery. We do not agree with the majority, however, that plaintiff fails as a matter of law to meet the second requirement of the policy definition, i.e., that he is “not performing the duties of any gainful occupation for which [he is] reasonably fitted by education, training, or experience.” Rather, the evidence with respect to the nature and extent of plaintiffs activities raises a triable issue of fact whether plaintiff is totally disabled within the meaning of the second requirement of the policy definition of “total disability” (see Estate of Jervis v Teachers Ins. & Annuity Assn., 306 AD2d 123, 124 [2003]; Scheuerman v St. Luke’s-Roosevelt Hosp. Ctr., 239 AD2d 333, 334 [1997]; Greenbaum v Prudential Ins. Co. of Am., 74 AD2d 757 [1980], lv dismissed 51 NY2d 703, 745 [1980]; see generally Niccoli, 70 Misc 2d at 149-150). We therefore would modify the order by denying the motion of defendant Life Insurance Company of Boston & New York and reinstating the complaint against it. Present—Gorski, J.P., Fahey, Peradotto, Green and Pine, JJ.