VARSHAVSKAYA v. METROPOLITAN LIFE INSURANCE COMPANY (2009)

In an action to recover the proceeds of a life insurance policy, the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Partnow, J.), dated December 24, 2008, which, upon an order of the same court dated December 2, 2008, granting the defendant's motion for summary judgment dismissing the complaint and denying their cross motion for summary judgment on the complaint, is in favor of the defendant and against them dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

 “[T]o 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” (Zilkha v. Mutual Life Ins. Co. of N.Y., 287 A.D.2d 713, 714, 732 N.Y.S.2d 51;  see Schirmer v. Penkert, 41 A.D.3d 688, 690, 840 N.Y.S.2d 796;  Insurance Law § 3105[b] ).  “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, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (Schirmer v. Penkert, 41 A.D.3d at 690-691, 840 N.Y.S.2d 796;  see Parmar v. Hermitage Ins. Co., 21 A.D.3d 538, 540, 800 N.Y.S.2d 726;  Curanovic v. New York Cent. Mut. Fire Ins. Co., 307 A.D.2d 435, 437, 762 N.Y.S.2d 148).

 Here, the defendant insurer demonstrated its prima facie entitlement to judgment as a matter of law.   The defendant established that the decedent's misrepresentation was material as a matter of law by submitting an affidavit of its associate chief underwriter and relevant portions of its underwriting manual which showed that the defendant would not have issued the same policy if the correct information pertaining to his income had been disclosed in the application (see Roudneva v. Bankers Life Ins. Co. of N.Y., 35 A.D.3d 580, 581, 827 N.Y.S.2d 213;  Gorra v. New York Life Ins. Co., 276 A.D.2d 469, 470, 714 N.Y.S.2d 85;  Insurance Law § 3105[c];  cf. Schirmer v. Penkert, 41 A.D.3d at 690-691, 840 N.Y.S.2d 796;  Parmar v. Hermitage Ins. Co., 21 A.D.3d at 540, 800 N.Y.S.2d 726).   In response, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiffs' cross motion for summary judgment on the complaint.