American Rice, Inc. v. National Union Fire Insurance

17 A.D.3d 240, 795 N.Y.S.2d 191, 2005 N.Y. App. Div. LEXIS 4205

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 2005
• Status: Published

Opinion

Order, Supreme Court, New York County (Herman Cahn, J.), entered December 9, 2003, which, in an action on a crime policy for loss caused by plaintiffs employee’s alleged misappropriation of plaintiffs subsidiary’s assets, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The action was properly dismissed upon undisputed facts that in the months preceding plaintiffs application for the subject insurance, plaintiff knew that its chief executive officer and president had been found civilly liable for fraud, and that he was claiming in the context of plaintiffs bankruptcy proceeding, spuriously according to plaintiff, that he, not plaintiff, was the true owner of plaintiffs subsidiary. Clearly, plaintiff did not regard this claim as mere posturing, as other of its officers became so concerned about unauthorized money transfers, many of which occurred prior to plaintiffs insurance application, that they demanded in writing and without avail, documentary justification therefor. Under these circumstances, plaintiff cannot claim, as represented in its application for the insurance, that it then had no reason to question this person’s honesty (Insurance Law § 3105). We have considered plaintiff’s other arguments and find them unavailing. Concur—Marlow, J.E, Ellerin, Nardelli, Williams and Sweeny, JJ.