
    John Hancock Mutual Life Insurance Company, Appellant, v David Lelonek, Respondent.
    [704 NYS2d 828]
   —In an action to rescind a disability insurance policy, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Douglass, J.), entered December 4, 1998, which dismissed the complaint and is in favor of the defendant and against it in the principal sum of $44,000 on his counterclaim.

Ordered that the judgment is affirmed, with costs.

The plaintiff insurance company issued the subject disability insurance policy to the defendant when it knew that the defendant already possessed a policy underwritten by the plaintiff. Together the policies exceeded the plaintiff’s limit for a person of the defendant’s annual income. Under the circumstances of this case, the trial court properly dismissed the complaint and awarded the defendant judgment on his counterclaim (see, Atlas v Metropolitan Life Ins. Co., 181 NYS 363; Lanigan v Prudential Co., 63 Hun 408; Metropolitan Life Ins. Co. v Goldberger, 3 Misc 2d 878; see also, Violin v Fireman’s Fund Ins. Co., 81 Nev 456, 406 P2d 287, 290).

The plaintiff’s remaining contention is unpreserved for appellate review. Santucci, J. P., Altman, Friedmann and Gold-stein, JJ., concur.  