BOYD v. ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK (1999)

Supreme Court properly granted defendant's motion for summary judgment and declared void and unenforceable a life insurance policy issued to plaintiff's husband (decedent) in December 1992.   Plaintiff commenced this action to collect the death benefits after decedent died on July 24, 1993.   Defendant counterclaimed for recission pursuant to Insurance Law § 3105 based on material misrepresentations on the insurance application.   In support of its motion, defendant presented the requisite “documentation concerning its underwriting practices” establishing that it would have denied the application had it contained accurate information concerning decedent's alcoholism (Carpinone v. Mutual of Omaha Ins. Co., 265 A.D.2d 752, 754, 697 N.Y.S.2d 381;  cf., Campese v. National Grange Mut. Ins. Co., 259 A.D.2d 957, 689 N.Y.S.2d 313;  Feldman v. Friedman, 241 A.D.2d 433, 434, 661 N.Y.S.2d 9).  In response, plaintiff failed to raise an issue of fact with respect to the application of defendant's alcoholism guidelines.

 Plaintiff contends that decedent was advised by the agent who completed the application not to disclose the condition.   By signing the application, however, decedent declared “that all answers written on this Application are full and correct” and acknowledged that defendant “is not presumed to know any information not in this application” and that no agent “may change this Application or waive a right or requirement” (see, Wageman v. Metropolitan Life Ins. Co., 24 A.D.2d 67, 69, 263 N.Y.S.2d 915, affd. 18 N.Y.2d 777, 274 N.Y.S.2d 908, 221 N.E.2d 566;  see also, Cutrone v. American Gen. Life Ins. Co. of N. Y., 199 A.D.2d 1032, 1033, 606 N.Y.S.2d 491;  DiGrazia v. United States Life Ins. Co. in City of N. Y., 170 A.D.2d 246, 247-248, 565 N.Y.S.2d 525;  Bloom v. Mutual of Omaha Ins. Co., 161 A.D.2d 1047, 1049, 557 N.Y.S.2d 614).

 We reject the contention of plaintiff that an estoppel defense may be premised upon proof that, after decedent's death, defendant accepted two premium payments automatically deducted from a joint bank account (cf., Scalia v. Equitable Life Assur. Socy. of U.S., 251 A.D.2d 315, 673 N.Y.S.2d 730).   The continued deduction of the premium payments following decedent's death was an error that was promptly corrected by defendant.

 The court properly declared the rights of the parties but erred in dismissing the complaint (see, Tumminello v. Tumminello, 204 A.D.2d 1067, 614 N.Y.S.2d 963).   We modify the judgment, therefore, by vacating the provision dismissing the complaint.

Judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: