Alfie's Original Souliers, Inc. v. Phoenix Assurance

Appellate Division of the Supreme Court of New York

Alfie's Original Souliers, Inc. v. Phoenix Assurance

245 A.D.2d 179, 665 N.Y.S.2d 890, 1997 N.Y. App. Div. LEXIS 13133

Appellate Division of the Supreme Court of the State of New York·Decided December 18, 1997·Published

Opinion

—Order, Supreme Court, New York County (Carol Huff, J.), entered October 18, 1996, which, insofar as appealed from, denied the motion of defendant Phoenix Assurance Company of New York for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant’s submission of evidence of the underwriting practices it followed two years after it accepted plaintiffs application for insurance, coupled with conclusory deposition testimony of its underwriter, was insufficient to meet its burden of establishing that plaintiffs misrepresentations were material as a matter of law (see, Alaz Sportswear v Public Serv. Mut. Ins. Co., 195 AD2d 357; Lindenbaum v Equitable Life Assur. Socy., 5 AD2d 651). Here, the materiality of the failure to dis[180] close the prior loss is a question of fact for the jury (see, Alaz Sportswear v Public Serv. Mut. Ins. Co., supra; see also, Ebisons Harounian Imports v Travelers Indem. Co., 195 AD2d 371). Concur—Ellerin, J. P., Wallach, Mazzarelli, Andrias and Colabella, JJ.

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—Order, Supreme Court, New York County (Carol Huff, J.), entered October 18, 1996, which, insofar as appealed from, denied the motion of defendant Phoenix Assurance Company of New York for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant’s submission of evidence of the underwriting practices it followed two years after it accepted plaintiffs application for insurance, coupled with conclusory deposition testimony of its underwriter, was insufficient to meet its burden of establishing that plaintiffs misrepresentations were material as a matter of law (see, Alaz Sportswear v Public Serv. Mut. Ins. Co., 195 AD2d 357; Lindenbaum v Equitable Life Assur. Socy., 5 AD2d 651). Here, the materiality of the failure to dis[180] close the prior loss is a question of fact for the jury (see, Alaz Sportswear v Public Serv. Mut. Ins. Co., supra; see also, Ebisons Harounian Imports v Travelers Indem. Co., 195 AD2d 371). Concur—Ellerin, J. P., Wallach, Mazzarelli, Andrias and Colabella, JJ.

Alfie's Original Souliers, Inc. v. Phoenix Assurance, 245 A.D.2d 179, 665 N.Y.S.2d 890, 1997 N.Y. App. Div. LEXIS 13133 (N.Y. Ct. App. 1997).

Pincite

245 A.D.2d 179 (Alfie's Original Souliers, Inc. v. Phoenix Assurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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