Opinion
June 1, 1998
Appeal from the Supreme Court, Kings County (Garson, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the appellant is granted.
The evidence in the record establishes that the life insurance policy issued by the defendant American Centurion Life Assurance Company (hereinafter ACL) to the decedent William Threatt lapsed due to nonpayment of premiums, but was reinstated retroactive to April 1, 1988. Accordingly, and contrary to the plaintiffs' contention, the two-year contestability period had not yet expired upon the decedents death in March 1990 ( see, Insurance Law § 3203 [a] [3]; § 3210).
ACL presented sufficient evidence to establish as a matter of law that the decedent made material misrepresentations on the medical history portion of his application for reinstatement of the life insurance policy ( see, Geer v. Union Mut. Life Ins. Co., 273 N.Y. 261; Aguilar v. United States Life Ins. Co., 162 A.D.2d 209), submitting an affidavit from an underwriter which, together with portions of its underwriting guidelines, established that it would not have reinstated the policy had it known that the decedent had been treated for intestinal mycosis ( see, e.g., Gentile v. Continental Am. Life Ins. Co., 215 A.D.2d 626; Shapiro v. Allstate Life Ins. Co., 202 A.D.2d 659; Aguilar v. United States Life Ins. Co., supra). As the plaintiffs failed to present any evidence raising a triable issue of fact as to the materiality of the misrepresentation, the court erred in denying that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the appellant.
The plaintiffs' remaining contentions are without merit.
O'Brien, J. P., Pizzuto, Joy and Florio, JJ., concur.