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COHEN v. MUTUAL BEN. LIFE INS. CO.

June 10, 1986

PHYLISS COHEN, Individually, and as Administratrix of the Estate of SOLOMON COHEN, Plaintiff,
v.
MUTUAL BENEFIT LIFE INSURANCE CO., Defendant


Bartels, District Judge.


The opinion of the court was delivered by: BARTELS

BARTELS, District Judge

MEMORANDUM-DECISION and ORDER

 Plaintiff Phyllis Cohen brings this diversity action to recover proceeds under a life insurance policy issued by defendant Mutual Benefit Life Insurance (MBLI) to plaintiff's husband, Solomon Cohen, who died of cardio-respiratory arrest approximately four months after the policy was issued. (Unless otherwise indicated the name Cohen refers to Solomon Cohen). MBLI denied recovery under the policy on the ground that the insured's failure to disclose a long history of heart trouble and diabetes was a material misrepresentation which warranted rescission of the policy. Plaintiff subsequently brought this action, and MBLI now moves for summary judgment on the same ground.

 Facts

 In October, 1982, on the application for the policy at issue here, Cohen gave the following responses most of which MBLI claims constituted a material misrepresentation of his medical history and condition. (Cohen's responses are underlined).

 
1. Proposed insured: Solomon Cohen
 
2a. Name and address of your personal doctor: Dr. Maurice Safrin - Booth Memorial Drive, Flushing, New York.
 
b. Date and reason last consulted: 1982 - checkup
 
c. What treatment was given, diagnosis made, or medication prescribed? None
 
(For each "Yes" answer in items 3 through 12, give details in item 13 below. Include diagnoses, dates, durations and names and addresses of all doctors or other practitioners.)
 
3. Have you ever had, or been told you had, or been treated for (Circle illness, injury, or complaint to which each "Yes" answer refers.)
 
a. heart trouble, high blood pressure, or pain about the heart or chest? Yes ["heart trouble" circled].
 
b. diabetes; presence of albumin, blood, or sugar in ...

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