Opinion
September 27, 1996.
Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following
Before: Present Green, J.P., Lawton, Fallon, Callahan and Doerr, JJ.
Supreme Court properly determined that the life insurance policy lapsed, at the latest, one year after the default in the payment of the premium ( see, Insurance Law § 3211 [a] [1]; Pinkof v Mutual Life Ins. Co., 49 AD2d 452, 455-456, affd 40 NY2d 1003; Margulis v Penn Assn., 123 Mise 2d 216, 218). The court erred, however, in granting judgment to defendant dismissing the complaint rather than declaring the rights of the parties ( see, Pless v Town of Royalton, 185 AD2d 659, 660, affd 81 NY2d 1047). Thus, we modify the judgment by reinstating the complaint and granting judgment in favor of defendant declaring that the policy was not in effect on the date of the death of plaintiff's father. (Appeal from Judgment of Supreme Court, Ontario County, Henry, Jr., J. — Declaratory Judgment.)