Opinion
July 2, 1990
Appeal from the Supreme Court, Kings County (Vinik, J.).
Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the motion which was to dismiss the complaint in action No. 2 is denied, the complaint in action No. 2 is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent hereinwith.
North Atlantic Life Insurance Company of America is clearly entitled to a determination as to whether the subject insurance policy should be rescinded based upon the insured's alleged misrepresentations in his application (see, Levande v. Canada Life Assur. Co., 23 A.D.2d 669, affd 17 N.Y.2d 645). This determination is to be made by the court, which, in its discretion, may or may not employ an advisory jury (see, CPLR 4212). Lawrence, J.P., Kunzeman, Rubin and Rosenblatt, JJ., concur.