East 115th St. Realty Corp. v Focus & Struga Bldg. Devs. LLC, 2011 NY Slip Op 05125 [85 AD3d 511]

June 14, 2011

Appellate Division, First Department

— [*1]

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 NY 54, 64 [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 AD3d 115 [2007]).

[*2] 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. Concur—Saxe, J.P., Acosta, DeGrasse, Abdus-Salaam and Manzanet-Daniels, JJ. [Prior Case History: 27 Misc 3d 1206(A), 2010 NY Slip Op 50572(U).].