MEMORANDUM AND ORDER
TRAGER, District Judge:
This is an action for a declaratory judgment pursuant to 28 U.S.C. §§ 2201-2202 to determine the rights and liabilities under a contract of disability income insurance and to recover benefits alleged to have been improperly received by the defendant, Bruce D. Lindenman. Before the court are plaintiff's, Mutual Benefit Life Insurance's (MBL), motion for summary judgment and defendant's, Bruce D. Lindenman's, cross-motion for summary judgment.
In 1982 and 1983, Lindenman obtained two disability policies from MBL in the amount of $ 6,000 per month. On March 20, 1990, MBL notified Lindenman by letter that, on May 19, 1990, he would be eligible to purchase the additional insurability protection rider on his 1983 disability policy. The letter stated:
This rider allows you to purchase additional coverage at specified intervals. Additional coverage can be purchased subject only to financial underwriting (no medical evidence need be furnished.) Now is the perfect time to review your needs with your agent because an option will become available on May 19, 1990. Your agent . . . will be in contact with you to discuss the matter. Exh. B of Lindenman's Aff., dated 8/29/94, (emphasis in original).
Shortly after receiving this letter Lindenman was contacted by Seymour Lubchansky who had been an agent for MBL for about six years. On April 12, 1990, Lubchansky and Lindenman met at Lindenman's home where Lindenman, with Lubchansky's assistance, completed an application for an additional $ 750 of disability insurance. One question in the application requested information concerning Lindenman's existing disability insurance policies; to this inquiry, he replied that he had two MBL policies. Specifically, the application appears as follows:
"b) Present disability income insurance:
Company Yr. Issued Monthly Benefit Sick/Accident
MBL 1982 3000 65/ L
MBL 1983 3000 65/ L"
© 1992-2004 VersusLaw Inc.