Opinion
July 9, 1990
Appeal from the Supreme Court, Queens County (Nahman, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant has offered evidence raising questions of fact concerning possible material misrepresentations regarding the decedent's medical history which were disclosed in his application for a life insurance policy (see, Berger v. United States Life Ins. Co., 158 A.D.2d 440; Leamy v. Berkshire Life Ins. Co., 39 N.Y.2d 271; Wittner v. IDS Ins. Co., 96 A.D.2d 1053). Additionally, there are questions of fact as to whether the defendant would have insured the decedent had it known of his condition (see, Meagher v. Executive Life Ins. Co., 148 A.D.2d 426; Di Pippo v. Prudential Ins. Co., 88 A.D.2d 631; Wittner v IDS Ins. Co., supra). Therefore, summary judgment was properly denied. Brown, J.P., Lawrence, Kooper and O'Brien, JJ., concur.