The Appellate Division unanimously reversed, with costs, the Order which denied plaintiffs' motion for leave to renew defendant's motion for summary judgment, granted the motion, and upon renewal, denied defendant's motion for summary judgment. Decedent had applied for a term life insurance policy, stating that his "Earned Annual Income" was $50,000. Decedent left his employment during the probationary period, and died while the policy was contestable, The insurance company rescinded the policy on the ground that decedent, on his application, had made a material misrepresentation as to his income. Plaintiffs brought this breach of contract action, and defendant moved for summary judgment before the close of discovery. While defendant's fully submitted motion was pending, there were three depositions, of an underwriting controls representative, a senior technical advisor, and the agent who sold the policy to decedent. The motion court granted defendant's motion for summary judgment, and then denied plaintiffs' motion for leave to renew defendant's motion based on these subsequently held depositions. The motion court should have granted plaintiffs motion for leave to renew in order to submit these deposition transcripts. Although the term "Earned Annual Income" was unambiguous and meant actual earned income, including salary, wages, and tips, and not potential income, the new evidence by way of the deposition transcripts raises a factual issue as to whether decedent's response amounted to a material misrepresentation sufficient to void the policy.
Han v. Brighthouse Life Ins. Co. of NY, NY Slip Op 01325 (1st Dep't March 4 2021)
