Roth v. American International Life Assurance Co.

In an action to recover the proceeds of a life insurance policy, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Nahman, J.), dated October 11, 1988, as denied his motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant has offered evidence raising questions of fact concerning possible material misrepresentations regarding the *379decedent’s medical history which were disclosed in his application for a life insurance policy (see, Berger v United States Life Ins. Co., 158 AD2d 440; Leamy v Berkshire Life Ins. Co., 39 NY2d 271; Wittner v IDS Ins. Co., 96 AD2d 1053). Additionally, there are questions of fact as to whether the defendant would have insured the decedent had it known of his condition (see, Meagher v Executive Life Ins. Co., 148 AD2d 426; Di Pippo v Prudential Ins. Co., 88 AD2d 631; Wittner v IDS Ins. Co., supra). Therefore, summary judgment was properly denied. Brown, J. P., Lawrence, Kooper and O’Brien, JJ., concur.