EAST 115TH STREET REALTY CORP v. [And a Third–Party Action].

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Supreme Court, Appellate Division, First Department, New York.

EAST 115TH STREET REALTY CORP., Plaintiff, v. FOCUS & STRUGA BUILDING DEVELOPERS LLC, et al., Defendants, Great American Insurance Company of New York, Defendant–Respondent, Abad Consulting (a Corporation), Defendant–Appellant. [And a Third–Party Action].

Decided: June 14, 2011

SAXE, J.P., ACOSTA, DeGRASSE, ABDUS–SALAAM, MANZANET–DANIELS, JJ. Ropers Majeski Kohn Bentley PC, New York (Anthony D. Grande of counsel), for appellant. Mound Cotton Wollan & Greengrass, New York (Kevin F. Buckley of counsel), for respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered March 12, 2010, which, insofar as appealed from, granted the motion of defendant Great American Insurance Company of New York (GAIC) for summary judgment dismissing plaintiff's third cause of action alleging breach of an insurance contract, unanimously affirmed, with costs.

The motion court determined that the policy was void ab initio due to material misrepresentations on the insurance application submitted by defendant-appellant Abad Consulting (broker).

Insurance Law § 3105 permits an insurer to rescind a policy where the application contains a material misrepresentation (see American Sur. Co. of N.Y. v. Patriotic Assur. Co., Ltd., 242 N.Y. 54, 64, 150 N.E. 599 [1926] ).   Here, the application stated that no structural alterations to the subject building would be done, which plaintiff's principal admitted was untrue.   Although other documents submitted with the initial application had some indication that there would be structural work, in response to GAIC's request for “clarification,” it received an e-mail stating that “the broker advises there will be no structural changes.”

GAIC submitted an affidavit of its underwriter, along with the relevant underwriting guidelines, establishing that it would not have issued the policy in this form had it known the true state of affairs.   This was sufficient to establish GAIC's entitlement to judgment as a matter of law (see Dwyer v. First Unum Life Ins. Co., 41 A.D.3d 115, 837 N.Y.S.2d 635 [2007] ).

We have considered the broker's remaining contentions, including that further discovery should have been conducted before the motion was decided, and find them unavailing.