Opinion
May 17, 1976
In an action on a life insurance policy, the defendant appeals from a judgment of the Supreme Court, Nassau County, entered July 2, 1975, which is in plaintiff's favor, after a jury trial. Judgment reversed, on the law and the facts, without costs or disbursements, complaint dismissed and defendant is directed to return the premium paid for the life insurance policy to plaintiff. The undisputed medical testimony in the record on this appeal establishes that, in his application for insurance, the insured materially misrepresented that he had not been treated by physicians for alcoholism. On the contrary, the testimony, confirmed by the medical records, was that there had been a period of several years of medical treatment and consultations relating to this specific condition with several physicians employed in the insured's employer's medical department. As a matter of law, such misrepresentation was material (see Vander Veer v Continental Cas. Co., 34 N.Y.2d 50, 52). In Vander Veer the Court of Appeals, in considering an undisclosed cardiac abnormality for which the insured had been treated, stated (pp 52-53): "As an insurer, the defendant is free to select its risks and it makes inquiry of matters which it deems material to the risk. Failure to disclose is as much a misrepresentation as a false affirmative statement. (Geer v Union Mut. Life Ins. Co., 273 N.Y. 261.) * * * We hold, as a matter of law, that at the time of making application, plaintiff did misrepresent his health and we hold further, as a matter of law, that such a misrepresentation was material (Insurance Law, § 149; Wageman v Metropolitan Life Ins. Co., 24 A.D.2d 67, affd. 18 N.Y.2d 777)." The trial court erred in not having dismissed the complaint at the close of defendant's case. The jury's verdict, furthermore, was against the weight of the credible evidence. In view of the foregoing, we have not reached any other issues posed by appellant. Cohalan, Acting P.J., Damiani, Rabin, Titone and Hawkins, JJ., concur.