Opinion
May 22, 1995
Appeal from the Supreme Court, Nassau County (O'Shaughnessy, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the respondent is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).
The defendant Continental American Life Insurance Company (hereinafter Continental) presented sufficient evidence to establish as a matter of law that the plaintiff's decedent made material misrepresentations on her application for life insurance (see, e.g., Shapiro v Allstate Life Ins. Co., 202 A.D.2d 659; Aguilar v United States Life Ins. Co., 162 A.D.2d 209; Insurance Law § 3105 [b]). The decedent failed to disclose that she had been treated for a major mental illness suffered by her within the two years preceding her application. Continental submitted an affidavit from one of its underwriters, together with portions of its underwriting manual, which established that it would not have issued the policy if it had known of the decedent's mental illness. The plaintiff's contention that the questions on the application were ambiguous because they did not specifically refer to psychiatric illnesses is without merit as the decedent was asked to provide information regarding her treatment for any "illness" or any "medical impairment" within the past five years (see generally, United States Fid. Guar. Co. v Annunziata, 67 N.Y.2d 229, 232; cf., Nadel v Manhattan Life Ins. Co., 211 A.D.2d 900). Accordingly, Continental was entitled to summary judgment on its counterclaim for rescission of the policy.
In any event, the plaintiff's demand for punitive damages was properly dismissed as he failed to present sufficient evidentiary allegations to support such a claim (see, Rocanova v Equitable Life Assur. Socy., 83 N.Y.2d 603, 613; Ahmadi v Government Empls. Ins. Co., 204 A.D.2d 374). Sullivan, J.P., Copertino, Goldstein and Florio, JJ., concur.