67 A.D.2d 883 | N.Y. App. Div. | 1979
— Order of the Supreme Court, New York County, entered January 23, 1978, denying plaintiffs motion for summary judgment on grounds that issues of fact exist which require a plenary trial, unanimously reversed, on the law, without costs or disbursements, and the motion for summary judgment granted. Defendant, then 54 years of age, applied for the policy July, 1974 and the policy was issued the following month, with the application attached. In answer to specific questions on the application as to whether he ever was treated for or ever had certain illnesses or within the past five years consulted or was examined or treated by any physician, had any illness, injury or surgery or been a patient in a hospital or had any X-ray test, defendant answered in the negative. The insured was hospitalized at Metropolitan Hospital from January 18, 1974 to January 31, 1974. The hospital discharge summary disclosed a diagnosis of labile hypertension, acute anxiety syndrome and abnormal lung scan. X-ray studies showed borderline cardiomegaly and that hydrodiural and Valium were prescribed. The insured’s past medical history noted in the discharge summary indicated that he had double pneumonia at six months of age, diverticulosis diagnosed three years ago at the same hospital, prior multiple fractures of the tibia, wrist, frontal bone and nasalis, bilateral small toe amputation, cervical osteoarthritis at C-5 and C-6 level, ligament repair of the right knee and fatty food intolerance. Subdivision 2 of section 149 of the Insurance Law provides that: ”2. No misrepresentation shall avoid any contract of insurance or defeat any recovery thereunder unless such misrepresentation was material. No misrepresentation shall be deemed material unless knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract.”
