Peerless Insurance v. Sears

34 A.D.2d 725, 312 N.Y.S.2d 347, 1970 N.Y. App. Div. LEXIS 5225

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 1970
• Status: Published

Opinion

— Order unanimously reversed, without costs, and motion for summary judgment granted declaring that plaintiff is not obligated to defend, and motion for order permitting defendant’s attorneys to withdraw granted. Memorandum: In this action for a declaratory judgment that Peerless was not required to defend two actions brought against its assured the president of the assured was charged by the insurer with giving fraudulent information to the police, the Motor Vehicle Department and itself. The president of the assured, in an affidavit, admits the false information. The insurer disclaimed two days after receiving this information. The act of the president was the act of the corporation. (Diamond v. Oreamuno, 29 A D 2d 285, 287, affd. 24 N Y 2d 494; People v. Rochester Ry. & Light Co., 195 N. Y. 102, 105.) The failure to make fair and truthful disclosures was a breach of the insurance contract as a matter of law. (National Grange Mut. Ins. Co. v. Austin, 23 A D 2d 776; State Farm Mut. Auto. Ins. Co. v. Brown, 21 A D 2d 742.) There was no waiver or estoppel on the part of the insurer as it had no knowledge of the facts until two days before the disclaimer (S. & E. Motor Hire Corp. v. New York Ind. Co., 255 N. Y. 69, 72) and its notice to disclaim was timely (National Grange Mut. Liab. Co. v. Fino, 13 A D 2d 10, 13). (Appeal from order of Cayuga Special Term denying motion for summary judgment and other relief.) Present—Del Vecehio, J. P., Marsh, Witmer, Moule and Henry, JJ.