uardian Life Insurance Company of America v. Costa

—Order unanimously affirmed without costs. *971Memorandum: Supreme Court properly denied the cross motions of plaintiff and defendant for summary judgment. The record reveals that material issues of fact exist regarding whether defendant made material misrepresentations on her application for the disability income insurance policy issued to her by plaintiff. Plaintiff failed to establish that it would have rejected defendant’s application in the absence of the alleged misrepresentations and failed to submit sufficient proof of its underwriting practices regarding applicants with similar histories…