Majority
p. 1085Massachusetts Casualty Insurance Co., Appellant, v Thomas J. McCarthy, Respondent.
— Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly granted summary judgment to defendant on his counterclaim to enforce a policy of disability insurance issued by plaintiff. Defendant’s failure to reveal, in his application for the insur
p. 1086
anee, that he had visited physicians on two occasions for minor depression, once in 1981 and once in 1987, does not, as a matter of law, constitute a material misrepresentation justifying cancellation of the policy. Where the alleged misrepresentations concern minor or temporary illnesses from which the applicant has recovered, such misrepresentations are not material (1A Appleman, Insurance Law and Practice §§ 252, 281). (Appeal from Judgment of Supreme Court, Monroe County, Siracuse, J. — Rescind Insurance Contract.) Present— Callahan, J. P., Boomer, Balio, Fallon and Doerr, JJ.