
    Harriet De Toma, Appellant, v William Penn Life Insurance Company of New York, Respondent.
   — Order of the Supreme Court, Bronx County (Callahan, J.), entered January 5, 1982, granting the defendant’s motion to dismiss the complaint, reversed, on the law, and the motion to dismiss the complaint denied, without costs. The plaintiff and her late husband applied for a life insurance policy in connection with a mortgage transaction for the purchase of a parcel of real estate. The plaintiff claims that they relied on the representation of the agent, alleged to be the agent of the defendant insurance company, that they were covered when they signed the insurance application, subject only to a medical examination. It is alleged further that he was examined by the defendant’s physician and found to be an acceptable risk and that the policy was fully effective when, later on the same day, the husband suffered a heart attack and died. On its face, the complaint may state a cause of action; and this is not a motion for summary judgment. (CPLR 3211, subd [c]; Rovello v Orofino Realty Co., 40 NY2d 633.) Concur — Carro, Silverman, Bloom and Milonas, JJ. Kupferman, J. P., dissents and would affirm on the opinion of Callahan, J., at Special Term.  