uardian Life Insurance Company of America v. Costa

221 A.D.2d 970, 635 N.Y.S.2d 571, 1995 N.Y. App. Div. LEXIS 13461

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1995
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the cross motions of plaintiff and defendant for summary judgment. The record reveals that material issues of fact exist regarding whether defendant made material misrepresentations on her application for the disability income insurance policy issued to her by plaintiff. Plaintiff failed to establish that it would have rejected defendant’s application in the absence of the alleged misrepresentations and failed to submit sufficient proof of its underwriting practices regarding applicants with similar histories (see, Church of Transfiguration v New Hampshire Ins. Co., 207 AD2d 1039).

Although the notice of appeal recites that plaintiff appeals from that part of the order granting defendant leave to amend her answer and second counterclaim, plaintiff on appeal does not address that part of the order. Plaintiff has thus abandoned the issue on appeal (see, Sto Corp. v Henrietta Bldg. Supplies, 202 AD2d 969, 969-970). (Appeals from Order of Supreme Court, Erie County, Cosgrove, J.—Summary Judgment.) Present—Pine, J. P., Fallon, Callahan, Doerr and Davis, JJ.