Kuritzky v. National Casualty Co.

261 A.D. 1083, 27 N.Y.S.2d 5, 1941 N.Y. App. Div. LEXIS 8891

Opinion

The motion to dismiss the appeal for lack of jurisdiction, renewed upon argument of the appeal pursuant to the decision of this court dated January 13, 1941 [not reported], is denied, without costs. Plaintiff sues on a hospitalization insurance policy issued by defendant. The application for the policy, signed by plaintiff on September 15, 1938, contained, among others, two questions: “ 9. Have you had medical or surgical advice or treatment or any departure from good health, within the past seven years; if so state when, cause and duration? 10. Have you ever had or been advised to have a surgical operation? * * * ” In answering these questions plaintiff failed to reveal that she had been treated for a thyroid condition and that in January, 1933, she had been operated on for the removal of a thyroid gland. Plaintiff’s failure to disclose these facts prevented the defendant from investigating to determine whether it would accept the risk and issue the policy. This misrepresentation or suppression of information was material as matter of law. Judgment of the City Court of the City of Peekskill reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.