
    Ricky Scott, as Beneficiary Under a Life Insurance Policy Insuring the Life of Salone Scott, Appellant, v American General Life Insurance Company of New York, Respondent.
    [655 NYS2d 502]
   —Order, Supreme Court, New York County (Elliott Wilk, J.), entered on or about June 12, 1996, which denied plaintiff’s motion for summary judgment in an action to recover the proceeds of a life insurance policy, unanimously affirmed, without costs.

Plaintiff argues that any issues of fact as to whether the insured’s health had been misrepresented would not preclude summary judgment in his favor if the two-year incontestability period had lapsed, that the IAS Court erred in holding that the incontestability period had not lapsed, and that it should be found, as a matter of law, that the period did lapse. We agree with plaintiff that the IAS Court erred in finding, as a matter of law, that the insured died within the two-year incontestability period, but find the issue cannot be determined as a matter of law in his favor since there is an issue of fact as to the date of issue of the policy. Under the policy, the two-year period is to be measured from the policy’s Date of Issue, defined as the date on which the first premium was due. An issue of fact exists as to when that date was, raised by the letter of defendant’s broker to plaintiff and the insured, dated August 12, 1992, stating that "coverage is in force at this time, even though the issue date [on the policy itself] is September 1, 1992”. Concur—Milonas, J. P., Wallach, Nardelli and Tom, JJ.  