Carlin v. Crum & Forster Insurance

191 A.D.2d 373, 595 N.Y.S.2d 420, 1993 N.Y. App. Div. LEXIS 2840

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 1993
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Myriam Altman, J.), entered March 11, 1992, dismissing the complaint, upon an order, same court and Justice, entered January 27, 1992, which, inter alia, granted defendants’ motion for summary judgment, unanimously affirmed, with costs.

The action was properly dismissed because plaintiffs’ sworn proof of loss statement contained the material misrepresentations that they owned the insured property at the time of the loss, that no other person had any interest in or encumbrances on the property, and that there had been no change of interest in the property since issuance of the policy of insurance. Documentary evidence conclusively establishes that when plaintiffs presented the proof of loss statement, they knew that legal title to the property was held by the City of New York at the time of the loss, as a result of an in rem tax foreclosure action, and that there were outstanding tax liens totaling approximately $6,143.87 on the insured property. It is well settled that questions as to ownership, liens and encumbrances, and changes of interest in property are material as a matter of law (Claflin v Commonwealth Ins. Co., 110 US 81). Plaintiffs’ excuses for these misrepresentations were, as the IAS Court found, obvious fabrications intended to overcome summary judgment (see, American Realty Co. v 64 B Venture, 176 AD2d 226, 227, lv denied 79 NY2d 756). Accordingly, plaintiffs’ intentional misrepresentation of material facts in the proof of loss statement rendered the policy void in accordance with its terms (Sunbright Fashions v Greater N. Y. Mut. Ins. Co., 34 AD2d 235, affd 28 NY2d 563).

We have reviewed plaintiffs’ remaining claims and find them to be without merit. Concur — Milonas, J. P., Rosenberger, Wallach and Ross, JJ.