Opinion
October 28, 1997
Appeal from Supreme Court, New York County (Paula Omansky, J.).
The materiality of a misrepresentation, which must be determined as of the date the policy was issued, "is ordinarily a question of fact, [unless] the evidence of the materiality * * * is clear and substantially uncontradicted" ( Interested Underwriters at Lloyd's v. H.D.I. III Assocs., 213 A.D.2d 246, 247). Here, the question of whether the misrepresentation involved was material was appropriately found to be one of fact. The evidence supports the trial court's factual finding that the misrepresentation herein was not material and we decline to disturb it.
Concur — Ellerin, J.P., Rubin, Tom, Mazzarelli and Andrias, JJ.