Opinion
March 31, 1992
Appeal from the Supreme Court, New York County (Alice Schlesinger, J.).
While the failure of an insurer and its agent to follow Insurance Department Regulations when issuing a replacement life insurance policy for an existing policy may estop them from raising as a defense to liability under the replacement policy, the insured's material misrepresentation on the application therefor (Tannenbaum v Provident Mut. Life Ins. Co., 41 N.Y.2d 1087), we agree with the IAS court that the evidence here is insufficient, as a matter of law, to support such an estoppel. The affidavit of plaintiff's attorney, the only one submitted in opposition to defendants' motions for summary judgment was made without personal knowledge, contains only conclusory allegations, and is of no probative value (Capelin Assocs. v Globe Mfg. Corp., 34 N.Y.2d 338). As a result, it is left undisputed that the policy procured was not replacement insurance for an existing policy, that the decedent made misrepresentations of a material nature as to his prior health history in the application, and that neither the insurer nor its agent acted knowingly against the decedent's interest in violation of insurance law (see, Trainor v John Hancock Mut. Life Ins. Co., 54 N.Y.2d 213; Farley v Metropolitan Life Ins. Co., 127 A.D.2d 99).
We have reviewed plaintiff's remaining arguments and find them to be without merit.
Concur — Milonas, J.P., Ellerin, Kupferman, Asch and Kassal, JJ.