N.Y. Insurance Law § 3105: Representations by the insured

§ 3105. Representations by the insured. (a) A representation is a

statement as to past or present fact, made to the insurer by, or by the

authority of, the applicant for insurance or the prospective insured, at

or before the making of the insurance contract as an inducement to the

making thereof. A misrepresentation is a false representation, and the

facts misrepresented are those facts which make the representation

false.

(b)(1) No misrepresentation shall avoid any contract of insurance or

defeat recovery thereunder unless such misrepresentation was material.

No misrepresentation shall be deemed material unless knowledge by the

insurer of the facts misrepresented would have led to a refusal by the

insurer to make such contract.

(2) With respect to a policy of hospital, medical, surgical, or

prescription drug expense insurance subject to articles thirty-two or

forty-three of this chapter, no misrepresentation shall avoid any

contract of insurance or defeat recovery thereunder unless the

misrepresentation was also intentional.

(c) In determining the question of materiality, evidence of the

practice of the insurer which made such contract with respect to the

acceptance or rejection of similar risks shall be admissible.

(d) A misrepresentation that an applicant for life or accident and

health insurance has not had previous medical treatment, consultation or

observation, or has not had previous treatment or care in a hospital or

other like institution, shall be deemed, for the purpose of determining

its materiality, a misrepresentation that the applicant has not had the

disease, ailment or other medical impairment for which such treatment or

care was given or which was discovered by any licensed medical

practitioner as a result of such consultation or observation. If in any

action to rescind any such contract or to recover thereon, any such

misrepresentation is proved by the insurer, and the insured or any other

person having or claiming a right under such contract shall prevent full

disclosure and proof of the nature of such medical impairment, such

misrepresentation shall be presumed to have been material.