Opinion
2013-03-26
ARCH SPECIALTY INSURANCE COMPANY, Plaintiff–Respondent, v. KAM CHEUNG CONSTRUCTION, INC., Defendant–Appellant.
Kushnick Pallaci, PLLC, Melville (Lawrence A. Kushnick of counsel), for appellant. Goldberg Segalla LLP, Albany (Matthew S. Lerner of counsel), for respondent.
Kushnick Pallaci, PLLC, Melville (Lawrence A. Kushnick of counsel), for appellant. Goldberg Segalla LLP, Albany (Matthew S. Lerner of counsel), for respondent.
FRIEDMAN, J.P., MOSKOWITZ, DeGRASSE, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered July 23, 2012, which denied defendant's motion for summary judgment, granted plaintiff's cross motion for summary judgment, and declared the subject policy of insurance void, unanimously affirmed, without costs.
Defendant's misrepresentation on its application was material as a matter of law because, had the insurer known the true facts, it would have refused “to make such contract” (Insurance Law § 3105[b][1] ) either by not issuing the policy or by charging a higher premium ( see Interested Underwriters at Lloyd's v. H.D.I. III Assoc., 213 A.D.2d 246, 623 N.Y.S.2d 871 [1st Dept. 1995];see also Matter of Union Indem. Ins. Co. of N.Y., 89 N.Y.2d 94, 106–107, 651 N.Y.S.2d 383, 674 N.E.2d 313 [1996] ). The affidavit of the insurer's underwriter and the rating guidelines used by its underwriters were sufficient proof of its underwriting practices to demonstrate that, had the true facts been known, the policy would not have been issued for the premium charged ( see Kiss Constr. NY, Inc. v. Rutgers Cas. Ins. Co., 61 A.D.3d 412, 414, 877 N.Y.S.2d 253 [1st Dept. 2009] ). In view of the foregoing, we need not address defendant's claim for attorneys' fees.