52 A.D.2d 836 | N.Y. App. Div. | 1976
In an action on an insurance policy, defendant appeals from an order and judgment (one paper) of the Supreme Court, Kings County, entered December 16, 1975, which, inter alia, (1) granted plaintiff’s motion for summary judgment and (2) denied defendant’s cross motion for summary judgment. Order and judgment reversed, on the law, without costs or disbursements, motion denied, cross motion granted and complaint dismissed. No findings of fact were presented for review. In this action, plaintiff seeks to recover the proceeds of a life insurance policy which was issued upon the life of her deceased husband. The record on this appeal clearly shows that, although no specific diagnosis of "heart disease” may have been made, decedent materially misrepresented his medical history by failing to disclose, inter alia, his visits to a doctor on several occasions for chest pains and the various blood thinning medications he was taking. One of these visits was only 11 days prior to the date that he filed his application for the insurance policy. These misrepresentations were material as a matter of law (see Leamy v Berkshire Life Ins. Co., 39 NY2d 271; see, also, Home Life Ins. Co. v Kupfer, 281 App Div 685). Accordingly, summary judgment in defendant’s favor should have been granted. Hopkins, Acting P. J., Martuscello, Cohalan, Rabin and Shapiro, JJ., concur.