KEARSE v. VEHICLE (2025)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

Memorandum: Plaintiff commenced this breach of contract action alleging that defendant was required pursuant to the terms of its insurance contract with plaintiff to pay for damage to plaintiff's property caused by a fire. Supreme Court granted defendant's motion for summary judgment seeking, inter alia, dismissal of the complaint on the ground that plaintiff made material factual misrepresentations in her application for the insurance contract at issue. We agree with plaintiff on appeal that, under the facts of this case, the court erred in granting the motion. We therefore reverse.

“Whether a misrepresentation in an application for insurance constitutes a material misrepresentation that would allow an insurer to avoid the resulting insurance contract is generally a question of fact” (Iacovangelo v. Allstate Life Ins. Co. of N.Y., 300 A.D.2d 1132, 1133, 750 N.Y.S.2d 920 [4th Dept. 2002]; see generally Insurance Law § 3105). Here, the underwriting guidelines on which defendant relied in support of its motion do not unequivocally support the conclusion that plaintiff's application would have been denied had it contained accurate information, and the supporting affidavit of defendant's representative contained insufficient further detail to support that conclusion as a matter of law (see Iacovangelo, 300 A.D.2d at 1133, 750 N.Y.S.2d 920; Carpinone v. Mutual of Omaha Ins. Co., 265 A.D.2d 752, 755, 697 N.Y.S.2d 381 [3d Dept. 1999]). Inasmuch as defendant failed to meet its initial burden, we need not review the sufficiency of plaintiff's opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]).