TOM

Schindel, Farman, Lipsius, Gardner & Rabinovich LLP, New York (Phillip M. Manela of counsel), for appellant. Krantz & Berman LLP, New York (Larry H. Krantz of counsel), for respondent.

TOM, J.P., SWEENY, DeGRASSE, ABDUS–SALAAM, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 21, 2010, which, inter alia, granted defendant AXA Equitable Life Insurance Company's (AXA) motion for summary judgment dismissing plaintiff's breach of contract claim and granted defendant summary judgment on its second counterclaim for rescission, unanimously modified, on the law, to the extent of denying defendant's motion as premature without prejudice to renew at the completion of discovery, remanding for further discovery in accordance with this decision, and otherwise affirmed, without costs. Order, same court and Justice, entered May 14, 2010, adhering to the prior decision upon a partial grant of reargument, unanimously dismissed, without costs, as academic.

In this stranger owned life insurance case, plaintiff Alexander Ashkenazi, as Trustee of the Zablidowsky Life Insurance Trust (the Trust), sued defendant AXA, alleging breach of contract and seeking payment on two life insurance policies, for $5 million and $3 million, respectively. The Trust was the owner and beneficiary of both policies, each of which insured the life of Estelle Zablidowsky, an elderly woman of modest means. AXA moved for summary judgment prior to the completion of discovery, seeking dismissal of the complaint and rescission of the policy.

Summary judgment is premature at this juncture since there are issues of fact as to whether the decedent's net worth and the existence of another life insurance policy were material to AXA's decision to issue the policy ( Alaz Sportswear v. Public Serv. Mut. Ins. Co., 195 A.D.2d 357, 358, 600 N.Y.S.2d 63 [1993] ). Based on the submitted excerpts of the trial transcripts in Settlement Funding, LLC v. AXA Equitable Life Ins., 2010 WL 3825735, 2010 U.S. Dist LEXIS 104451 [S.D.N.Y.2010], and other submissions, plaintiff demonstrated that further discovery is warranted on the issues of whether AXA's submitted underwriting guidelines are complete, whether AXA routinely ignored its own requirement to confirm an insured's financial net worth via an inspection report, and whether the financial information or any additional existing policies was material to AXA's underwriting decisions regarding similarly situated applicants. Thus, proof of defendant's underwriting practices with respect to applicants with similar histories is required.

Plaintiff's request for a premium refund, submitted for the first time in his motion to renew and reargue, however, was properly denied (CPLR 2221 [e]; William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27, 588 N.Y.S.2d 8 [1992], lv. denied 80 N.Y.2d 1005, 592 N.Y.S.2d 665, 607 N.E.2d 812 [1992] ). In any event, a request for return of the premiums paid is premature in light of our determination that the propriety of the rescission cannot be resolved without further discovery.