Leon Sylvester, Inc. v. Aetna Casualty & Surety Co.

227 A.D.2d 212, 642 N.Y.S.2d 275, 1996 N.Y. App. Div. LEXIS 5158

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1996
• Status: Published

Opinion

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered November 17, 1994, which, in an action to recover the proceeds of a fire insurance policy, granted defendant’s motion for summary judgment dismissing the complaint, and order, same court and Justice, entered April 14, 1995, which, insofar as appealable, denied defendant’s motion for renewal, unanimously affirmed, with costs.

Plaintiff’s attempts to correct the misstatements of its assignor at his first examination under oath that he was the true owner of the subject property and used his own funds for its purchase, in a correction sheet submitted a year and a half later and at a subsequent examination under oath, were properly rejected by the IAS Court as "disingenuous”. These willful misrepresentations were of a material nature, violating the fraud and concealment provision of the policy, and hence invalidating it (see, Rickert v Travelers Ins. Co., 159 AD2d 758, 760, lv denied 76 NY2d 701; 232 Broadway Corp. v New York Prop. Ins. Underwriting Assn., 206 AD2d 419, lv denied 85 NY2d 808). Concur — Sullivan, J. P., Rosenberger, Nardelli, Williams and Tom, JJ.