Shabashev v. New York Life Insurance , 150 A.D.2d 673 ( 1989 )

In an action to recover the proceeds of a life insurance policy, the plaintiff beneficiary appeals from an order of the Supreme Court, Kings County (Williams, J.), dated June 7, 1988, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Summary judgment was properly granted to the defendant based on the insured’s failure to furnish true answers about his heart condition and prior hospitalizations. The defendant’s uncontroverted proof of its underwriting practices established that these omissions induced the defendant to accept the insured’s application for insurance, which it might otherwise have refused (see, Insurance Law § 3105; see also, Leamy v Berkshire Life Ins. Co., 39 NY2d 271, 274; Vander Veer v Continental Cas. Co., 34 NY2d 50, 52; Geer v Union Mut. Life Ins. Co., 273 NY 261, 270, rearg denied 274 NY 569). Nor can the plaintiff rely on the defendant’s agent’s alleged knowledge of the insured’s prior hospitalizations, since there is a provision in the policy which expressly preserves the defendant’s rights to disclaim coverage based on material omissions in the application (see, Wageman v Metropolitan Life Ins. Co., 24 AD2d 67, 70-71, affd 18 NY2d 777). Lawrence, J. R, Kunzeman, Rubin and Kooper, JJ., concur.