Ordered that the appeals from the order dated May 16, 1988, and from the judgment are dismissed, as that order and the judgment were superseded by the order dated October 5, 1988, made upon reargument; and it is further,
Ordered that the order dated October 5, 1988, is reversed insofar as appealed from, on the law, the order dated May 16, 1988, and the judgment are vacated and the plaintiff's motion is denied; and it is further,
Ordered that the defendant is awarded one bill of costs.
The record establishes that the plaintiff's late husband was hospitalized while he was incarcerated. It also appears that prior to his incarceration he used drugs. He failed to report this information in his application to the defendant for a life insurance policy. The defendant disclaimed coverage, asserting that his failure to disclose was material so that had it been aware of these facts it would not have issued the policy.
In order for an insurer to establish its right to rescind an insurance policy, it must establish that there were misrepresentations in the application and that they were material to the risk it was being asked to insure (see, Vander Veer v Continental Cas. Co., 34 N.Y.2d 50; Kulikowski v Roslyn Sav. Bank, 121 A.D.2d 603). Ordinarily the issue of materiality is a question of fact for a jury (see, Tolar v Metropolitan Life Ins. Co., 297 N.Y. 441; Kulikowski v Roslyn Sav. Bank, supra; Puccia v Farmers Traders Life Ins. Co., 75 A.D.2d 943).
Here the defendant provided documentation of the plaintiff's decedent's hospitalization and drug use during the five-year period prior to the date of the application. Thus, the defendant has presented issues of fact which require a trial (see, Zuckerman v City of New York, 49 N.Y.2d 557; Krupp v Aetna Life Cas. Co., 103 A.D.2d 252; CPLR 3212 [b]). Mangano, J.P., Bracken, Kunzeman and Spatt, JJ., concur.