Opinion
May 17, 1982
In an action to collect the proceeds of a life insurance policy, defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Jordan, J.), dated April 14, 1981, as, upon reargument, in effect adhered to the original determination denying defendant's motion for summary judgment. Order affirmed insofar as appealed from, with $50 costs and disbursements. Defendant must demonstrate that it would have rejected Anthony L. Di Pippo's application for life insurance had it known of his history of treatment for psychiatric disorders (see Insurance Law, § 149, subd 2). To meet this burden, defendant must adduce proof as to its underwriting practices with respect to applicants with such a history (see Insurance Law, § 149, subd 3). The only evidence in the record is a conclusory statement by one of defendant's senior underwriting consultants and a section from defendant's underwriter's manual which is not adequately described. This does not establish, as a matter of law, that defendant would have rejected the application. Accordingly, Special Term properly held that there are triable issues of fact. Weinstein, J.P., Brown, Niehoff and Boyers, JJ., concur.