Zilkha v. Mutual Life Insurance Company of New York
| Decision Date | 29 October 2001 |
| Citation | 732 N.Y.S.2d 51,287 A.D.2d 713 |
| Court | New York Supreme Court — Appellate Division |
| Parties | NAOMI ZILKHA, Respondent,<BR>v.<BR>MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant. |
Altman, J. P., Krausman, Friedmann and Schmidt, JJ., concur.
Ordered that the order is affirmed, with costs.
In order to establish its right to rescind an insurance policy, an insurer must demonstrate that the insured made a material misrepresentation. A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented (see, Penn Mut. Life Ins. Co. v Remling, 268 AD2d 572, 573; Insurance Law § 3105 [b]). Ordinarily, the issue of materiality is a question of fact for the jury (see, Process Plants Corp. v Beneficial Natl. Life Ins. Co., 53 AD2d 214, 216, affd 42 NY2d 928). Here, there are issues of fact as to whether the plaintiff was, in fact, treated for certain medical conditions which she failed to disclose and whether any such alleged misrepresentations were material. Consequently, the defendant's motion for summary judgment was properly denied.
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