Opinion
2000-09266
Argued October 25, 2001.
December 24, 2001.
In an action, inter alia, to recover the proceeds of a disability insurance policy, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), dated August 17, 2000, as denied its motion for summary judgment (a) on its first three counterclaims seeking, inter alia, rescission of the subject insurance policy and a declaration that the policy is rescinded and is null and void, and (b) dismissing the complaint, and granted the plaintiff's cross motion for leave to amend the complaint, and the plaintiff cross-appeals from so much of the same order as denied her cross motion for summary judgment.
Harry Organek, Roslyn, N.Y., for respondent-appellant.
Windels Marx Lane Mittendorf, LLP, New York, N.Y. (Thomas J. Mulligan and James G. Morrell of counsel), for appellant-respondent.
Before: GABRIEL M. KRAUSMAN, J.P., SONDRA MILLER, NANCY E. SMITH, STEPHEN G. CRANE, JJ.
ORDERED that the order is reversed insofar as appealed from, on the law, the motion is granted, the cross motion is denied, the complaint is dismissed, the remaining counterclaims are severed, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the subject insurance policy is rescinded and is null and void; and it is further,
ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,
ORDERED that the defendant is awarded one bill of costs.
Contrary to the plaintiff's contention, the defendant submitted sufficient evidence to establish as a matter of law that the plaintiff made material misrepresentations on her application for disability insurance (see, Belesi v. Connecticut Mut. Life Ins. Co., 272 A.D.2d 353; Hydell v. North Atl. Life Ins. Co., 246 A.D.2d 511; see also, Insurance Law § 3105[b]). In response, the plaintiff failed to demonstrate the existence of any material issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557). The plaintiff's contention that the questions on the subject policy's application were ambiguous is without merit (see, Gentile v. Continental Am. Life Ins. Co., 215 A.D.2d 626).
Since the defendant sought a declaratory judgment in its counterclaims, the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the subject insurance policy is rescinded and is null and void (see, Lanza v. Wagner, 11 N.Y.2d 317, appeal denied 371 U.S. 74, cert denied 371 U.S. 901).
The plaintiff's remaining contention is without merit.
KRAUSMAN, J.P., S. MILLER, SMITH and CRANE, JJ., concur.