Moses v. Metropolitan Life Insurance

—In an action to recover the proceeds of a life insurance policy, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Posner, J.), dated March 16, 2001, as denied that branch of her motion which was for summary judgment. Ordered that the order is affirmed insofar as appealed from, with costs. After the plaintiff made out a prima facie case for summary judgment, the defendant submitted sufficient evidence to raise a triable issue of fact as to whether the insured made material misrepresentations on his application for life insurance (see, Insurance Law § 3105 [b]; Kirkpatrick v State Farm Fire & Cas., 255 AD2d 363; Radin v New York Life Ins., 243 AD2d 550; Smirlock Realty Corp. v Title Guar. Co., 70 AD2d 455). Accordingly, that branch of the plaintiff’s motion which was for summary judgment was properly denied. We reject the defendant’s contention that the plaintiff’s conduct in bringing this appeal was frivolous (see, 22 NYCRR 130-1.1). Bracken, P. J., Friedmann, Florio and H. Miller, JJ., concur.