Opinion
April 25, 1997
Present — Denman, P.J., Pine, Doerr, Balio and Fallon, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of defendant and the cross motion of plaintiff for summary judgment. Although the record establishes that plaintiff made misrepresentations on the policy application, defendant failed to establish "that it would have rejected the application if the information had been truthful" ( Cutrone v. American Gen. Life Ins. Co., 199 A.D.2d 1032, 1033). There is, therefore, a question of fact regarding the materiality of the misrepresentation ( see, Cutrone v. American Gen. Life Ins. Co., supra).
We have considered the parties' remaining contentions and conclude that they are without merit. (Appeals from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.)