AXA Equit. Life Ins. Co. v Dobner

AXA Equit. Life Ins. Co. v Dobner 2018 NY Slip Op 03460 Decided on May 10, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 10, 2018
Tom, J.P., Kapnick, Kahn, Kern, JJ.
6539 600635/10

[*1]AXA Equitable Life Insurance Company, Plaintiff-Respondent,

v

Sara Dobner 2005 Lechaim Irrevocable Life Insurance Trust, et al., Defendants-Appellants.

Robinson Brog Leinwand Greene Genovese & Gluck, P.C., New York (Sheldon Eisenberger of counsel), for appellants.

Krantz & Berman LLP, New York (Larry H. Krantz of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Gerald Lebovits, J.), entered January 20, 2017, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment declaring the subject insurance policy void ab initio, on its cause of action for rescission, and dismissing the defendants' counterclaim for breach of contract, unanimously affirmed, with costs.

Plaintiff established prima facie that the financial representations on the application by the settlor of defendant trust (Mrs. Dobner) for life insurance were false and material (see Insurance Law § 3105; Kroski v Long Is. Sav. Bank, 261 AD2d 136, 137 [1st Dept 1999]). Mrs. Dobner's son testified that his mother's net worth was "substantially less than" $12 million, that his parents had no interest in real estate partnerships and they did not have $5 million in IRAs, stocks, and annuities. Plaintiff's underwriter testified that she was guided in her underwriting by plaintiff's February 2006 Financial Underwriting Guidelines, in effect when the application was reviewed, and that she relied on the representations in the application in reaching her underwriting decision (see Ashkenazi v AXA Equid. Life Ins. Co., 155 AD3d 583, 584 [1st Dept 2017]).

In opposition, defendants failed to raise an issue of fact. Mrs. Dobner's son's claimed belief that a question about net assets referred to family assets does not controvert the fact that the financial information on the application was false. Nor did defendants raise an issue of fact as to whether plaintiff issued high-value policies that did not comport with its guidelines.

We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 10, 2018

CLERK