I dissent and vote to affirm the judgment.
Special Term found that the decedent failed to disclose that she had received "advice from or attendance or treatment by physicians, other practitioners or psychologists”, as requested by the application form for the insurance. Special Term further found that Dr. Ferrell, a psychiatrist, diagnosed the condition of the insured as "involutional melancholia with post-partum depression” and "paranoid ideation”, and that he had treated the insured for alcohol addiction. Special Term also found that the policy would not have been issued had the plaintiff known that the insured had consulted Dr. Ferrell concerning her condition or that the insured had been treated by a psychiatrist.
Clearly, if the record supports these findings, Special Term was justified in granting judgment rescinding the policy because of the material misrepresentation by the insured in the application (see Insurance Law, § 142, subd 3; § 149; Geer v Union Mut. Life Ins. Co., 273 NY 261). It is not relevant that the decedent did not understand the significance of the questions and her answers (see Leamy v Berkshire Life Ins. Co., 39 NY2d 271, 274). Moreover, the plaintiff is entitled to determine what risks it will accept for insurance (see Vander Veer v Continental Cas. Co., 34 NY2d 50, 52).
The majority rests the reversal on the conclusion that the testimony of Dr. Ferrell did not establish that he had treated the decedent for a psychiatric disorder or alcoholic addiction. *183The credibility of Dr. Ferrell, in view of his friendship with the decedent and her husband (the defendant), and his evident reluctance to damage the defendant’s case, was of course a matter primarily for the trial court to decide. A reading of the testimony, in my opinion, validates the findings made after the trial that Dr. Ferrell did indeed treat the decedent for a psychiatric disorder and alcoholic addiction. It is not decisive that the cause of death was not related to the condition diagnosed by Dr. Ferrell. "The fact that the applicant died from another cause does not disprove the increase of risk” (see Glickman v New York Life Ins. Co., 291 NY 45, 52; see, also, Vander Veer v Continental Cas. Co., 34 NY2d 50, supra; Hollinger v Mutual Benefít Life Ins. Co., 541 P2d 128 [Col]; Vaughn v American Nat. Ins. Co., 543 P2d 1404 [Okl]; Ann 148 ALR 912).
Essentially, therefore, the judgment of Special Term was based upon findings of fact, supported by sufficient evidence, and we should not substitute our judgment to reach an opposite result (see Barrett v State Mut. Life Assur. Co., 49 AD2d 856; Orenstein v Metropolitan Life Ins. Co., 18 AD2d 1016; cf. Tolar v Metropolitan Life Ins. Co., 297 NY 441, 446-447).
Damiani, Rabin and Titone, JJ., concur with Shapiro, J.; Hopkins, Acting P. J., dissents and votes to affirm the judgment, with an opinion.
Judgment of the Supreme Court, Nassau County, entered November 10, 1975, reversed, on the law and the facts, with costs, defendant is awarded judgment on his counterclaim, and action remitted to Special Term for entry of an appropriate judgment.