PIPO BAR AND RESTAURANT INC v. Teotonio Branco, et al., third-party defendants-respondents. (2005)

In an action to recover damages for breach of an insurance contract, the defendant third-party plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered January 21, 2004, which denied its motion for summary judgment dismissing the complaint and for summary judgment in its favor against the third-party defendants on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Westchester County, for an inquest on the issue of damages in connection with the third-party claim.

The Supreme Court erred in denying the appellant's motion for summary judgment.   After the appellant established its prima facie entitlement to judgment as a matter of law, the plaintiff and third-party defendants failed to raise a triable issue of fact in opposition (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). The policy issued to the plaintiff insured is rendered void where the plaintiff has “ ‘willfully and fraudulently placed in the proofs of loss a statement of property lost which [it] did not possess, or has placed a false and fraudulent value upon the articles which [it] did own’ ” (Saks & Co. v. Continental Ins. Co., 23 N.Y.2d 161, 165, 295 N.Y.S.2d 668, 242 N.E.2d 833, quoting Domagalski v. Springfield Fire & Mar. Ins. Co., 218 App.Div. 187, 190, 218 N.Y.S. 164;  cf. St. Irene Chrisovalantou Greek Orthodox Monastery v. Cigna Ins. Co., 226 A.D.2d 624, 641 N.Y.S.2d 352;  Kyong Nam Chang v. General Acc. Ins. Co. of Am., 193 A.D.2d 521, 598 N.Y.S.2d 178).   The plaintiff's fraudulent misrepresentations regarding the total loss of two pool tables following a fire vitiated the policy in accordance with its terms, and the appellant insurers properly disclaimed coverage.