ROUDNEVA v. BANKERS LIFE INSURANCE COMPANY OF NEW YORK (2006)

In an action to recover the proceeds of a life insurance policy, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), dated May 19, 2005, as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 In support of that branch of its motion which was for summary judgment dismissing the complaint, the defendant proffered sufficient evidence to establish, as a matter of law, that its insured, the plaintiff's decedent, made material misrepresentations on the application to reinstate the policy of life insurance at issue here (see Gorra v. New York Life Ins. Co., 276 A.D.2d 469, 470, 714 N.Y.S.2d 85;  Gugleotti v. Lincoln Sec. Life Ins. Co., 234 A.D.2d 514, 651 N.Y.S.2d 600;  Meagher v. Executive Life Ins. Co. of N.Y., 200 A.D.2d 720, 607 N.Y.S.2d 361;  see also Chester v. Mutual Life Ins. Co. of N.Y., 290 A.D.2d 317, 736 N.Y.S.2d 355;  Aguilar v. United States Life Ins. Co. in City of N.Y., 162 A.D.2d 209, 556 N.Y.S.2d 584).   To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, which show that it would not have issued the same policy if the correct information had been disclosed in the application (see Insurance Law § 3105[c];  Curanovic v. New York Cent. Mut. Fire Ins. Co., 307 A.D.2d 435, 437, 762 N.Y.S.2d 148;  Tuminelli v. First Unum Life Ins. Co., 232 A.D.2d 547, 648 N.Y.S.2d 967;  Shapiro v. Allstate Life Ins. Co. of N.Y., 202 A.D.2d 659, 660, 609 N.Y.S.2d 323).   The defendant did that here by submitting the affidavit of its chief underwriter, supported by relevant portions of its underwriting manual and the “Blood Pressure Life Ratings,” which established that the omissions induced it to reinstate the policy, which it might otherwise have refused (see Gorra v. New York Life Ins. Co., supra at 470, 714 N.Y.S.2d 85;  Shabashev v. New York Life Ins. Co., 150 A.D.2d 673, 541 N.Y.S.2d 545;  Gugleotti v. Lincoln Sec. Life Ins. Co., supra;  Aguilar v. United States Life Ins. Co. In City of N.Y., supra.)   In opposition, the plaintiff did not raise a triable issue of fact.   The Supreme Court therefore properly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The plaintiff's remaining contentions either are without merit or improperly raised for the first time on appeal.