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Elisabeth Jackson, Individually and as Mother and Natural Guardian of Kadien Jackson, an Infant v. North Atlantic Life Insurance Company of America, (Action No. 1.) North Atlantic Life Insurance Company of America v. Elisabeth Jackson, (Action No. 2.)
In consolidated actions to recover the face amount of an insurance policy (action No. 1) and to rescind that policy (action No. 2), North Atlantic Life Insurance Company of America appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Vinik, J.), dated March 14, 1989, as granted that branch of the motion of Kadien and Elisabeth Jackson which was to dismiss action No. 2.
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Company of America is clearly entitled to a determination as to whether the subject insurance policy should be rescinded based upon the insured’s alleged misrepresentations in his application (see, Levande v Canada Life Assur.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 AD2d 669, affd 17 NY2d 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.