Moses v. Metropolitan Life Ins.

• Decision Date: 20 August 2001
• Citation: 729 N.Y.S.2d 901
• Parties: (A.D. 2 Dept. 2001) Audrey Cobb Moses, appellant, v Metropolitan Life insurance company, respondent. 2001-02970 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 901

729 N.Y.S.2d 901 (A.D. 2 Dept. 2001)

Audrey Cobb Moses, appellant, v Metropolitan Life insurance company, respondent.

2001-02970

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted June 27, 2001

August 20, 2001

Viders & Wiesen, Carle Place, N.Y. (Kenneth B. Wiesen of counsel), for appellant.

Moran & D'Arcambal, New York, N.Y. (Aimee P. Levine of counsel), for respondent.

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 A.D.2d 363, 679 N.Y.S.2d 688; Radin v New York Life Ins., 243 A.D.2d 550, 665 N.Y.S.2d 509; Smirlock Realty Corp. v Title Guar. Co., 70 A.D.2d 455, 421 N.Y.S.2d 232). 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.