Its sole proof that material misrepresentations were made which, if known, would have resulted in a denial of coverage, was the conclusory statement of its claims representative. As that statement was not supported by any internal underwriting documentation or the relevant portions of its underwriting manual, it was insufficient as a matter of law to support the granting of its motion (see Alaz Sportswear v. Public Serv. Mut. Ins. Co., 195 A.D.2d 357, 358; cf. Estate of Threatt v. American Centurion Life Assur. Co., 251 A.D.2d 284; Mehta v. New York Life Ins. Co., 203 A.D.2d 8; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320). In light of this determination, we need not reach the parties' remaining contentions.
The Supreme Court correctly concluded that the two-year contestability period in the original policy applied to the reinstated policy, despite the fact that neither the policy nor the reinstatement application specifically provided that a reinstated policy would have a two-year contestability period. Where an original life insurance policy contains a contestability period, the period begins to run anew when the policy is reinstated after lapsing (see, Teeter v. United Life Ins. Assn., 159 N.Y. 411; Insurance Law § 3210; see also, Estate of Threatt v. American Centurion Life Assur. Co., 251 A.D.2d 284; Kear v. Prudential Ins. Co. of Amer., 2 A.D.2d 71, 73, affd 3 N.Y.2d 959). Consequently, the contestability period had not expired when Mrs. DiMaggio died (see, Estate of Threatt v. American Centurion Life Assur. Co., supra).
However, the Supreme Court erred in denying, upon renewal, that branch of the defendant's prior cross motion which was for summary judgment on the counterclaim. The defendant submitted sufficient evidence to establish as a matter of law that the insured made material misrepresentations on his application for disability insurance (see, Threatt v. American Centurion Life Assurance Co., 251 A.D.2d 284; Hydell v. North Atlantic Life Ins. Co., 246 A.D.2d 511; Gugleotti v. Lincoln Sec. Life Ins. Co., 234 A.D.2d 514; see also, Insurance Law § 3105[b]). The defendant did not waive its right to rescind since it did not continue to accept premium payments after gaining sufficient knowledge of the alleged misrepresentations (see, Insurance Law § 3105[ b]; Hydell v. North Atlantic Life Ins. Co., ___ A.D.2d ___ [2d Dept., Oct. 25, 1999]; cf., Scalia v. Equitable Life Assurance Socy. of U.S., 251 A.D.2d 315).
However, the Supreme Court erred in denying, upon renewal, that branch of the defendant's prior cross motion which was for summary judgment on the counterclaim. The defendant submitted sufficient evidence to establish as a matter of law that the insured made material misrepresentations on his application for disability insurance (see, Threatt v. American Centurion Life Assurance Co., 251 A.D.2d 284; Hydell v. North Atlantic Life Ins. Co., 246 A.D.2d 511; Gugleotti v. Lincoln Sec. Life Ins. Co., 234 A.D.2d 514; see also, Insurance Law § 3105[b]). The defendant did not waive its right to rescind since it did not continue to accept premium payments after gaining sufficient knowledge of the alleged misrepresentations (see, Insurance Law § 3105[b]; Hydell v. North Atlantic Life Ins. Co., 246 A.D.2d 528 [2d Dept., Oct. 25, 1999]; cf., Scalia v. Equitable Life Assurance Socy. of U.S., 251 A.D.2d 315).
In sum, appellant, by submitting an affidavit from its underwriter together with portions of its undisputed underwriting guidelines, presented sufficient evidence to establish, as a matter of law, that the decedent made misrepresentations on the medical history portion of his application which were material to the risk in that it was the insurer's express non-discretionary practice and procedure to deny coverage to an applicant who was diagnosed with diabetes and had evidence of peripheral vascular disease (see, Borchardt v. New York Life Ins. Co., 102 A.D.2d 465, affd 63 N.Y.2d 1000). Accordingly, inasmuch as plaintiff-respondent has failed to present any evidence raising a triable issue of fact as to the materiality of the misrepresentation, the court erred in denying appellant's motion for summary judgment (see, Estate of Threatt v. American Centurion Life Assur. Co., 251 A.D.2d 284). Concur — Ellerin, P. J., Tom, Wallach and Andrias, JJ.