Testa v. Utica Fire Insurance

Appellate Division of the Supreme Court of New York

Testa v. Utica Fire Insurance

203 A.D.2d 357, 610 N.Y.S.2d 85, 1994 N.Y. App. Div. LEXIS 3745

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 11, 1994

StatusPublished

Cited by6 cases

This text of 203 A.D.2d 357 (Testa v. Utica Fire Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Testa v. Utica Fire Insurance, 203 A.D.2d 357, 610 N.Y.S.2d 85, 1994 N.Y. App. Div. LEXIS 3745 (N.Y. Ct. App. 1994).

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Opinion

—In an action, inter alia, to recover under a fire insurance policy, the defendant Utica Fire Insurance Company appeals from so much of an order of the Supreme Court, Kings County (Vinik, J.), dated April 7, 1992, as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

We agree with the Supreme Court that the evidence in the record is insufficient to warrant summary judgment dismissing the complaint. Reformation has been allowed in insurance cases where the insured’s premises are not as described in the policy but the insurer has not shown that it would not have insured the premises had it known the true facts (see, Pena v New York Prop. Ins. Underwriting Assn., 172 AD2d 393; Abulaynain v New York Merchant Bakers Mut. Fire Ins. Co., 128 AD2d 575; Court Tobacco Stores v Great E. Ins. Co., 43 AD2d 561). Here, the defendant insurer’s senior vice-president admitted that for a higher premium the insurer would have issued coverage of the plaintiffs premises without a sprinkler system. There is no allegation that the plaintiffs misrepresented their building as having a working sprinkler system. In fact, the insurer admitted that it obtained the information that the building was a "sprinklered risk” from the Insurance Service Organization. Moreover, there is evidence that upon receiving the policy purporting to cover a building with a sprinkler system, the plaintiffs agent contacted the issuing insurance agency and attempted to correct the error (compare, Town of German Flats v Aetna Cas. & Sur. Co., 174 AD2d 1003; Ogdensburg Bldg. Supply v Lumber Mut. Ins. Co., 102 AD2d 960). Under the circumstances, it cannot be said that the Supreme Court acted improperly in denying the insurer’s motion. Sullivan, J. P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.

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—In an action, inter alia, to recover under a fire insurance policy, the defendant Utica Fire Insurance Company appeals from so much of an order of the Supreme Court, Kings County (Vinik, J.), dated April 7, 1992, as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

We agree with the Supreme Court that the evidence in the record is insufficient to warrant summary judgment dismissing the complaint. Reformation has been allowed in insurance cases where the insured’s premises are not as described in the policy but the insurer has not shown that it would not have insured the premises had it known the true facts (see, Pena v New York Prop. Ins. Underwriting Assn., 172 AD2d 393; Abulaynain v New York Merchant Bakers Mut. Fire Ins. Co., 128 AD2d 575; Court Tobacco Stores v Great E. Ins. Co., 43 AD2d 561). Here, the defendant insurer’s senior vice-president admitted that for a higher premium the insurer would have issued coverage of the plaintiffs premises without a sprinkler system. There is no allegation that the plaintiffs misrepresented their building as having a working sprinkler system. In fact, the insurer admitted that it obtained the information that the building was a "sprinklered risk” from the Insurance Service Organization. Moreover, there is evidence that upon receiving the policy purporting to cover a building with a sprinkler system, the plaintiffs agent contacted the issuing insurance agency and attempted to correct the error (compare, Town of German Flats v Aetna Cas. & Sur. Co., 174 AD2d 1003; Ogdensburg Bldg. Supply v Lumber Mut. Ins. Co., 102 AD2d 960). Under the circumstances, it cannot be said that the Supreme Court acted improperly in denying the insurer’s motion. Sullivan, J. P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.

First Financial Insurance Company, Plaintiff-Counter v. Allstate Interior Demolition Corp., Defendant-Cross Defendant-Counter Claimant-Appellant, Hrh Construction Interiors, Inc., Defendant-Cross Claimant-Counter Claimant-Appellant, the Plaza Hotel Plaza Operating Partners, Ltd Fairmont Hotel Management, L.P. And New Plaza Associates, L.L.C.

193 F.3d 109 (First Circuit, 1999)

Anand v. GA Insurance

228 A.D.2d 397 (Appellate Division of the Supreme Court of New York, 1996)

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203 A.D.2d 357, 610 N.Y.S.2d 85, 1994 N.Y. App. Div. LEXIS 3745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/testa-v-utica-fire-insurance-nyappdiv-1994.

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