Tuminelli v. First Unum Life Insurance

232 A.D.2d 547, 648 N.Y.S.2d 967, 1996 N.Y. App. Div. LEXIS 10453

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1996
• Status: Published

Opinion

—In an action to collect the proceeds of a disability insurance policy, the plaintiff appeals from an order of the Supreme Court, Richmond County (Leone, J.), dated January 22, 1996, which, inter alia, denied his motion pursuant to CPLR 3212 for summary judgment on the second cause of action and to dismiss the defendant’s fourth affirmative defense and first counterclaim.

Ordered that the order is reversed, on the law, with costs, the fourth affirmative defense and first counterclaim is dismissed, and the plaintiffs motion for summary judgment on the second cause of action is granted.

The defendant was required to demonstrate that it would have rejected the plaintiffs application for disability insurance had it known that he had an active case of hepatitis A. To meet this burden, the defendant was required to adduce proof as to its underwriting practices with respect to applicants with such a history (see, Sonkin Assocs. v Columbian Mut. Life Ins. Co., 150 AD2d 764; Di Pippo v Prudential Ins. Co., 88 AD2d 631). The only evidence in the record on this issue is a conclusory statement by one of the defendant’s senior underwriters which did not establish, as a matter of law, that the defendant would have rejected the application (see, Di Pippo v Prudential Ins. Co., supra). Accordingly, the defendant has failed to raise a triable issue of fact (see, CPLR 3212 [b]). Bracken, J. P., Copertino, Joy, Florio and McGinity, JJ., concur.