CORAL STONES UNLIMITED CORP v. CERTAIN UNDERWRITERS AT LLOYDS HSBC (2005)

Judgment, Supreme Court, New York County (Emily Jane Goodman, J.), entered February 2, 2005, dismissing the complaint, and bringing up for review an order, same court and Justice, entered December 22, 2004, which granted defendants' motion for leave to amend their answer to assert an affirmative defense of misrepresentation, and for summary judgment on that defense, unanimously affirmed, with costs.   Appeal from the December 22, 2004 order unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

 The court properly exercised its discretion in permitting defendants to amend their answer to interpose the defense of misrepresentation (see CPLR 3025 [b];  Masterwear Corp. v. Bernard, 3 A.D.3d 305, 771 N.Y.S.2d 72 [2004] ), and in granting summary judgment based on that defense (see Igbara Realty v. New York Prop. Ins. Underwriting Assn., 104 A.D.2d 258, 482 N.Y.S.2d 741 [1984] ).   Defendants conclusively established that plaintiff misrepresented a material fact on its application for jewelers block insurance (see Naghavi v. New York Life Ins., 260 A.D.2d 252, 688 N.Y.S.2d 530 [1999];  Aguilar v. United States Life Ins. Co. in the City of New York, 162 A.D.2d 209, 556 N.Y.S.2d 584 [1990] ).