Wood v. Ontario Insurance

2 A.D.3d 1445, 769 N.Y.S.2d 430, 2003 N.Y. App. Div. LEXIS 14361

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 2003
• Status: Published

Opinion

Appeal from an order of Supreme Court, Erie County (Fahey, J.), entered March 21, 2003, which denied defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff applied for homeowner’s insurance with defendant, indicating on the application that she had not had any insurance cancelled in the previous three years and that she did not own a dog. Shortly after defendant issued a policy to plaintiff, her home was damaged by fire. Defendant denied plaintiff’s claim under the policy on the ground that plaintiff had made material misrepresentations on her application for insurance.

Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. To meet its burden on the motion, defendant was required to submit proof concerning its underwriting practices with respect to applicants with similar circumstances establishing that it would have denied the application had it contained accurate information (see Campese v National Grange Mut. Ins. Co., 259 AD2d 957, 958 [1999]; Cutrone v American Gen. Life Ins. Co. of N.Y., 199 AD2d 1032 [1993]; cf. Philadelphia Indem. Ins. Co. v Mendon Ponds Tennis Club, 259 AD2d 957 [1999]). Absent such proof, the conclusory averments of defendant’s president that the application would have been denied based on the presence of the dog and the prior cancellation are insufficient to establish as a matter of law that defendant would have rejected the application (see Campese, 259 AD2d at 958). Present—Pigott, Jr., P.J., Green, Scudder, Gorski and Lawton, JJ.