Opinion
October 7, 1992
Appeal from the Supreme Court, Monroe County, Siracuse, J.
Present — Callahan, J.P., Boomer, Balio, Fallon and Doerr, JJ.
Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly granted summary judgment to defendant on his counterclaim to enforce a policy of disability insurance issued by plaintiff. Defendant's failure to reveal, in his application for the insurance, that he had visited physicians on two occasions for minor depression, once in 1981 and once in 1987, does not, as a matter of law, constitute a material misrepresentation justifying cancellation of the policy. Where the alleged misrepresentations concern minor or temporary illnesses from which the applicant has recovered, such misrepresentations are not material (1A Appleman, Insurance Law and Practice §§ 252, 281).