Kress v. New York Property Insurance Underwriting Ass'n

168 A.D.2d 543, 563 N.Y.S.2d 660, 1990 N.Y. App. Div. LEXIS 15666

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1990
• Status: Published

Opinion

In an action to recover damages for breach of contract, the defendant New York Property Insurance Underwriting Association appeals from an amended judgment of the Supreme Court, Queens County (Zelman, J.), dated November 15, 1988, which is in favor of the plaintiff and against it in the principal sum of $429,091.36.

Ordered that the amended judgment is affirmed, with costs.

Because there was no evidence supporting the claim that the plaintiff misrepresented or concealed a material fact on the insurance application, we find that the court properly dismissed that defense (see, Abulaynain v New York Merchant Bakers Mut. Fire Ins. Co., 128 AD2d 575, 576; L.W.C. Agency v St. Paul Fire & Mar. Ins. Co., 125 AD2d 371, 374; Boyd v Otsego Mut. Fire Ins. Co., 125 AD2d 977; Lighton v Madison-Onondaga Mut. Fire Ins. Co., 106 AD2d 892).

We also agree that the appellant’s claims regarding the proof-of-loss statements were properly dismissed. There was no evidence to support the claim that the plaintiff intentionally misrepresented the damages (see, Deitsch Textiles v New York Prop. Underwriting Assn., 62 NY2d 999, 1001; Kaffalos, Inc. v Excelsior Ins. Co., 105 AD2d 957). Nor was there any question but that the plaintiff substantially complied with the requirement to timely complete the proof-of-loss statements (see, High Fashions Hair Cutters v Commercial Union Ins. Co., 145 AD2d 465, 466; P.S. Auctions v Exchange Mut. Ins. Co., 105 AD2d 473, 475; Ninth Fed. Sav. & Loan Assn. v New York Prop. Ins. Underwriting Assn., 99 AD2d 456).

We have considered the appellant’s remaining contentions and find them to be without merit. Thompson, J. P., Lawrence, Kunzeman and Rosenblatt, JJ., concur.