Opinion
May 31, 1996
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Lawton, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:
In this action to recover insurance benefits under a mortgagor's disability insurance policy, plaintiff contends that one question on the policy application was not printed in ten-point type as required by Insurance Law § 3102 (c) (1) (E), and therefore, defendant may not rely on that question to disclaim coverage. Under the circumstances of this case, we disagree. First, plaintiff responded to the question in issue. At no time has she either alleged or shown that she was unable to read or understand the question because of the size of the type. Thus, she was not prejudiced by defendant's technical non-compliance with Insurance Law § 3102 (c) (1) (E). Second, we conclude that defendant's technical non-compliance with that subdivision neither defeats defendant's right to disclaim coverage based upon plaintiff's alleged misrepresentations nor operates to relieve plaintiff of her duty to provide truthful information on her application ( see, Equitable Life Assur. Socy. v. Kaplan, 168 Misc. 24, affd 258 App. Div. 1038; see also, National Union Fire Ins. Co. v. Ambassador Group, 157 A.D.2d 293, lv dismissed 77 N.Y.2d 873). In our view, the thrust of the statutory requirement regarding print size in an insurance policy or an application for insurance is to insure that conditions, exceptions or other restrictive provisions that materially influence the rights and liabilities of an insured are clearly set out by print size that have that effect in the manner prescribed by the statute. We conclude that the printed question on the application herein did not materially influence the rights and liabilities of plaintiff, who at that time was only a prospective insured.
Supreme Court erred, however, in granting defendant's motion for summary judgment dismissing the complaint. Defendant failed to meet its burden of establishing as a matter of law that plaintiff made misrepresentations that were material on her application for mortgage disability insurance regarding a prior heart disease or disorder ( see, Ferris v. Columbian Mut. Ins. Co., 190 A.D.2d 1061, 1062; see also, Geer v. Union Mut. Life Ins. Co., 273 N.Y. 261, 266, rearg denied 274 N.Y. 569). Defendant submitted an affidavit of its manager of direct mail operations, who asserted that she is familiar with defendant's underwriting practices and that defendant would have either rejected plaintiff's application or issued an exclusion endorsement covering heart disease or heart disorder if it had received accurate information. That conclusory statement is insufficient, standing alone, to establish defendant's entitlement to judgment ( see, Gibbons v. John Hancock Mut. Life Ins. Co. [appeal No. 2], 227 A.D.2d 963 [decided herewith]; Ferris v. Columbian Mut. Ins. Co., supra, at 1063). Moreover, although a physician's report from plaintiff's 1985 hospitalization states an "impression" of heart disease, plaintiff was not hospitalized or diagnosed for heart problems. Rather, she was hospitalized for and diagnosed as having back injuries.