Di Filippi v. Equitable Life Assurance Society of United States

I cannot agree with the majority that a material misrepresentation has been established here as a matter of law. A misrepresentation is material only if "knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract” (Insurance Law, § 149, subd 2). The majority would have us believe that the only reasonable view of the evidence dictates that the misrepresentation was material.

The evidence, however, as noted by Mr. Justice Suozzi, was not conclusive on this critical issue. The treating physician testified that decedent visited him on four…