Opinion
May 22, 1989
Appeal from the Supreme Court, Kings County (Williams, J.).
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 N.Y.2d 271, 274; Vander Veer v Continental Cas. Co., 34 N.Y.2d 50, 52; Geer v Union Mut. Life Ins. Co., 273 N.Y. 261, 270, rearg denied 274 N.Y. 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 A.D.2d 67, 70-71, affd 18 N.Y.2d 777). Lawrence, J.P., Kunzeman, Rubin and Kooper, JJ., concur.