CURIEL v. STATE FARM FIRE AND CASUALTY COMPANY (2006)

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Queens County (Agate, J.), dated September 26, 2005, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

 Contrary to the plaintiff's contention, the defendant State Farm Fire and Casualty Company (hereinafter State Farm) established its prima facie entitlement to judgment as a matter of law by showing that the plaintiff made a material misrepresentation in his application for a homeowners' insurance policy, thereby entitling State Farm to rescind the policy (see Insurance Law § 3105[a], [b] and [c];  Columbia Equities Ltd. v. Verex Assur., 250 A.D.2d 641, 671 N.Y.S.2d 698;  Interested Underwriters at Lloyd's v. H.D.I. III Assoc., 213 A.D.2d 246, 247, 623 N.Y.S.2d 871;  Sunrise Fed. Sav. Bank v. Verex Assur., 204 A.D.2d 617, 612 N.Y.S.2d 226;  Process Plants Corp. v. Beneficial Natl. Life Ins. Co., 53 A.D.2d 214, 385 N.Y.S.2d 308, affd. 42 N.Y.2d 928, 397 N.Y.S.2d 1007, 366 N.E.2d 1361;  cf. Parmar v. Hermitage Ins. Co., 21 A.D.3d 538, 800 N.Y.S.2d 726;  Curanovic v. New York Cent. Mut. Fire Ins. Co., 307 A.D.2d 435, 437, 762 N.Y.S.2d 148;  Zilkha v. Mutual Life Ins. Co. of NY, 287 A.D.2d 713, 732 N.Y.S.2d 51;  Carpinone v. Mutual of Omaha Ins. Co., 265 A.D.2d 752, 754-755, 697 N.Y.S.2d 381).   In opposition, the plaintiff failed to raise a triable issue of fact.

 Moreover, the defendant insurance agent, Edward Graves, established his prima facie entitlement to judgment as a matter of law.   The plaintiff, in opposition, failed to raise triable issues of fact as to the existence of a special relationship between himself and Graves (see Murphy v. Kuhn, 90 N.Y.2d 266, 660 N.Y.S.2d 371, 682 N.E.2d 972;  M & E Mfg. Co. v. Frank H. Reis, Inc., 258 A.D.2d 9, 12, 692 N.Y.S.2d 191) or as to Graves' negligence in failing to procure the correct type of insurance (see Ambrosino v. Exchange Ins. Co., 265 A.D.2d 627, 695 N.Y.S.2d 767;  cf. Trizzano v. Allstate Ins. Co., 7 A.D.3d 783, 784, 780 N.Y.S.2d 147;  Arthur Glick Truck Sales v. Spadaccia-Ryan-Haas, Inc., 290 A.D.2d 780, 781, 736 N.Y.S.2d 491).