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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1997
• Status: 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 disclose 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.