Opinion
Submitted January 20, 2000
February 28, 2000
In an action to rescind a disability insurance policy, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Douglass, J.), entered December 4, 1998, which dismissed the complaint and is in favor of the defendant and against it in the principal sum of $44,000 on his counterclaim.
Smith Laquercia, LLP, New York, N.Y. (Kenneth J. Klein of counsel), for appellant.
Peters, Berger, Koshel Goldberg, P.C., Brooklyn, N.Y. (Marc A. Novick of counsel), for respondent.
FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The plaintiff insurance company issued the subject disability insurance policy to the defendant when it knew that the defendant already possessed a policy underwritten by the plaintiff. Together the policies exceeded the plaintiff's limit for a person of the defendant's annual income. Under the circumstances of this case, the trial court properly dismissed the complaint and awarded the defendant judgment on his counterclaim (see, Atlas v. Metropolitan Life Ins. Co., 181 N.Y.S 363; Lanigan v. Prudential Co., 63 Hun 408, Opn in 18 N.Y.S 287; Metropolitan Life Ins. Co. v. Goldberger, 3 Misc.2d 878 ; see also, Violin v. Fireman's Fund Ins. Co., 81 Nev. 456, 406 P.2d 287, 290 ).
The plaintiff's remaining contention is unpreserved for appellate review.