Church of Transfiguration v. New Hampshire Insurance

207 A.D.2d 1039, 616 N.Y.S.2d 843

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1994
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant insurer’s motion for summary judgment dismissing the complaint. Defendant moved for summary judgment on the ground that plaintiffs made material misrepresentations on their application for insurance for their yacht. In that application, plaintiffs drew a line through the space allotted for "Particulars and Amount Of All Yacht And Outboard Losses In Past Three Years.” Even assuming that plaintiffs failed to report a prior total loss of the boat and the cancellation of the previous policy issued by a different insurer, defendant failed to submit proof of its underwriting practices with respect to applicants with similar histories, and thus failed to meet its burden of establishing entitlement to judgment as a matter of law (see, Alaz Sportswear v Public Serv. Mut. Ins. Co., 195 AD2d 357, 358; Sonkin Assocs. v Columbian Mut. Life Ins. Co., 150 AD2d 764, 765; Di Pippo v Prudential Ins. Co., 88 AD2d 631). (Appeal from Order of Supreme Court, Nassau County, Brucia, J.—Summary Judgment.) Present—Pine, J. P., Lawton, Wesley, Doerr and Boehm, JJ.