TYRAS v. MOUNT VERNON FIRE INSURANCE COMPANY (2007)

In an action, inter alia, for a judgment declaring that the defendant Mount Vernon Fire Insurance Company is obligated to defend and indemnify the defendants H. Mauro & Sons, Inc., and Henry Mauro in an action pending in Supreme Court, Queens County, under Index No. 49847/02, entitled Tyras v. H. Mauro & Sons, the defendant Mount Vernon Fire Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated May 13, 2005, as denied that branch of its motion which was for summary judgment on its counterclaim to rescind the policy.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The defendant Mount Vernon Fire Insurance Company (hereinafter Mt. Vernon) counterclaimed, inter alia, to rescind a policy of insurance issued to the defendants H. Mauro & Sons, Inc., and Henry Mauro (hereinafter collectively Mauro) on the basis that the latter allegedly misrepresented material information in Mauro's application for insurance.   Insurance Law § 3105(a) defines a representation as a “statement as to past or present fact, made to the insurer ․ at or before the making of the insurance contract as an inducement to the making thereof,” and “a misrepresentation is a false representation, and the facts misrepresented are those facts which make the representation false.”   Such a statement is material if “knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such a contract” (Insurance Law § 3105 [a] ).  “ [M]aterial misrepresentations ․ if proven, would void the ․ insurance policy ab initio” (Taradena v. Nationwide Mut. Ins. Co., 239 A.D.2d 876, 659 N.Y.S.2d 646;  see also Sun Ins. Co. of N.Y. v. Hercules Sec. Unlimited, 195 A.D.2d 24, 605 N.Y.S.2d 767);  however, “the issue of materiality [of misrepresentation] is generally a question of fact for the jury” (Parmar v. Hermitage Ins. Co., 21 A.D.3d 538, 540, 800 N.Y.S.2d 726).

 Here, after Mt. Vernon made out a prima facie case for summary judgment, the plaintiff raised questions of fact both as to the issue of Mauro's alleged misrepresentation and whether such misrepresentation, if any, was material.   Accordingly, the court properly denied that branch of Mt. Vernon's motion which was for summary judgment to rescind the subject policy (see Carpinone v. Mutual of Omaha, 265 A.D.2d 752, 697 N.Y.S.2d 381;  Continental Ins. Co. v. RLI Ins. Co., 161 A.D.2d 385, 555 N.Y.S.2d 325;  see generally Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The remaining contentions are without merit.