Meagher v. Executive Life Insurance

In an action to collect the proceeds of a life insurance policy, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Benson, J.), entered March 31, 1988, which denied their motion for summary judgment on the complaint and dismissal of the defendant’s counterclaim. Ordered that the order is affirmed, with costs. We find that the court properly denied the plaintiffs’ motion. The defendant presented triable issues as to, inter alia, whether there was an adverse material change in the decedent’s health between the date of the medical examination conducted in connection with his application and the date that the policy was issued (see, Goldstein v New York Life Ins. Co., 176 App Div 813), whether there were material misrepresentations and concealment by the insured as to the state of his 427 health (see, Bronx Sav. Bank v Weigandt, 1 NY2d 545, 550), and whether, had it known of the applicant’s condition, the defendant would have insured him (see, Di Pippo v Prudential Ins. Co., 88 AD2d 631). Thompson, J. P., Kunzeman, Spatt and Balletta, JJ., concur.