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Supreme Court, Appellate Division, First Department, New York.

Shelly RAFFAELE, Plaintiff-Appellant, v. The UNITED STATES LIFE INSURANCE COMPANY, Defendant-Respondent.

Decided: November 18, 1999

SULLIVAN, J.P., NARDELLI, MAZZARELLI, LERNER and BUCKLEY, JJ. Charles Fischer, for Plaintiff-Appellant. Susan T. Kluewer, for Defendant-Respondent.

Order, Supreme Court, New York County (Herman Cahn, J.), entered January 13, 1999, which, in an action on a life insurance policy, denied plaintiff's motion for summary judgment, unanimously affirmed, without costs.

 An issue of fact exists as to whether the decedent's application for life insurance, submitted four months before his death, misrepresented that he never “used cocaine, barbiturates, amphetamines or any other drug which might cause a dependency, other than as prescribed by a licensed physician”.   Such issue is raised by statements in the autopsy report and death certificate that the decedent had a history of “acute and chronic substance abuse” and that the cause of death was “intoxication due to combined effect of opiate, ethanol and cocaine”;  the proximity of the decedent's death to the purchase of the policy;  and the decedent's family's refusal to cooperate with defendant's investigation and their request that an autopsy not be performed.   Whether the decedent was a drug user at the time he submitted the application is a matter peculiarly within the knowledge of plaintiff, who was the decedent's wife, and the decedent's other family members, and a summary disposition in plaintiff's favor would be premature at least until disclosure from her, and any other family members claiming knowledge of the decedent's abstinence from drugs, is complete (CPLR 3212[f] ).