RAFI v. RUTGERS CASUALTY INSURANCE COMPANY (2009)

 Defendant appeals from a judgment rendered in favor of plaintiffs, following a jury trial, based on the refusal by defendant to pay plaintiffs' claim for losses under an insurance policy issued by defendant to plaintiffs.   We agree with defendant that Supreme Court committed reversible error in charging the jury that defendant was required to prove that the alleged misrepresentations made by plaintiffs on their insurance application were intentional in order to prevail on its affirmative defense, seeking to void the insurance policy.   Rather, although misrepresentations made by an insured must be material, they may be innocently or unintentionally made (see Curanovic v. New York Cent. Mut. Fire Ins. Co., 307 A.D.2d 435, 436-437, 762 N.Y.S.2d 148;  see generally Insurance Law § 3105[a], [b] ), in which event the insurance policy is void ab initio (see Precision Auto Accessories, Inc. v. Utica First Ins. Co., 52 A.D.3d 1198, 1201, 859 N.Y.S.2d 799, lv. denied 11 N.Y.3d 709, 868 N.Y.S.2d 601, 897 N.E.2d 1085;  see also Taradena v. Nationwide Mut. Ins. Co., 239 A.D.2d 876, 877, 659 N.Y.S.2d 646).   Thus, the court should have charged the jury that, in order to prevail on its affirmative defense, defendant was required to submit “proof concerning its underwriting practices with respect to applicants with similar circumstances” in order to meet its burden of establishing that it would not have issued the same policy had the correct information been included in the application (Campese v. National Grange Mut. Ins. Co., 259 A.D.2d 957, 958, 689 N.Y.S.2d 313;  see Precision Auto Accessories, Inc., 52 A.D.3d at 1200, 859 N.Y.S.2d 799;   Curanovic, 307 A.D.2d at 437, 762 N.Y.S.2d 148;  see also § 3105[c] ).  We cannot conclude that the error in the court's charge is harmless, and we therefore reverse the judgment and grant a new trial (see Wilson v. Nationwide Mut. Ins. Co., 168 A.D.2d 912, 565 N.Y.S.2d 643, lv. dismissed 77 N.Y.2d 940, 569 N.Y.S.2d 613, 572 N.E.2d 54).

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and a new trial is granted.

MEMORANDUM: