Radin v. New York Life Insurance , 665 N.Y.S.2d 509 ( 1997 )

In an action to recover proceeds of an insurance policy, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated January 31, 1996, which denied his motion for partial summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff’s assertion, the defendant New York Life Insurance Company (hereinafter New York Life) is not estopped from denying coverage on the disability policy issued to him in 1989. The plaintiff failed to show that New York Life engaged in any activity in violation of the Codes, Rules, and Regulations of the State of New York (see, Trainor v John Hancock Mut. Life Ins. Co., 54 NY2d 213; Tannenbaum v Provident Mut. Life Ins. Co., 41 NY2d 1087; Farley v Metropolitan Life Ins. Co., 127 AD2d 99).

Furthermore, it cannot be said, as a matter of law, that the alleged misrepresentation the plaintiff made on his 1989 application for insurance was not material. It presents a question of fact for the jury (see, Insurance Law § 3105 [b]; Smirlock Realty v Title Guar. Co., 70 AD2d 455, 462). Rosenblatt, J. P., Copertino, Krausman and Goldstein, JJ., concur.