ARCH SPECIALTY INSURANCE COMPANY v. KAM CHEUNG CONSTRUCTION INC (2013)

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered July 23, 2012, which denied defendant's motion for summary judgment, granted plaintiff's cross motion for summary judgment, and declared the subject policy of insurance void, unanimously affirmed, without costs.

Defendant's misrepresentation on its application was material as a matter of law because, had the insurer known the true facts, it would have refused “to make such contract” (Insurance Law § 3105[b][1] ) either by not issuing the policy or by charging a higher premium (see Interested Underwriters at Lloyd's v. H.D.I. III Assoc., 213 A.D.2d 246 [1st Dept 1995]; see also Matter of Union Index. Ins. Co. of N.Y., 89 N.Y.2d 94, 106–107 [1996] ). The affidavit of the insurer's underwriter and the rating guidelines used by its underwriters were sufficient proof of its underwriting practices to demonstrate that, had the true facts been known, the policy would not have been issued for the premium charged (see Kiss Constr. NY, Inc. v. Rutgers Caves. Ins. Co., 61 AD3d 412, 414 [1st Dept 2009] ). In view of the foregoing, we need not address defendant's claim for attorneys' fees.