American General Life Insurance v. Dos Santos

91 A.D.2d 881, 457 N.Y.S.2d 789, 1983 N.Y. App. Div. LEXIS 16155

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 4, 1983
• Status: Published

Opinions

— Order, Supreme Court, New York County (Evens, J.), entered December 22,1980, denying plaintiff insurance company’s motion for summary judgment in an action seeking rescission of a disability insurance policy issued to defendant, affirmed, without costs. An issue of fact is presented as to the materiality of the misrepresentation attributed to the defendant in her application for a disability benefit insurance policy. Although it appears that defendant had sustained substantial injuries more than a year before in an accident not disclosed in her application, we are not persuaded that plaintiff’s conclusory allegations suffice to establish as a matter of law that “knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract.” (Insurance Law, § 149, subd 2; cf. Process Plants Corp. v Beneficial Nat. Life Ins. Co., 53 AD2d 214, affd on opn of App Div 42 NY2d 928.) Concur — Sandler, Sullivan and Kassal, JJ.