31-01 102nd Street Associates, Inc. v. Ace European Insurance Group , 954 N.Y.2d 883 ( 2012 )

The defendant Ace European Insurance Group, also known as Ace European Insurance Company (hereinafter Ace), established, prima facie, that the plaintiff made a material misrepresentation in its application for insurance and that, based on the relevant underwriting policies, Ace would not have issued the subject policy to the plaintiff had the correct information been disclosed in the application. Thus, Ace made a prima facie showing that the subject insurance policy is void ab initio (see Insurance Law § 3105 [b] [1]; Barkan v New York Schools Ins. Reciprocal, 65 AD3d 1061, 1063 [2009]). In opposition to Ace’s motion, the plaintiff and the appellants failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted Ace’s motion for summary judgment declaring that the loss to the plaintiffs property, as claimed by the plaintiff, is not covered under the insurance policy that Ace issued to the plaintiff. For the same reason, the Supreme Court properly denied the appellants’ cross motions for summary judgment dismissing Ace’s third affirmative defense, which alleged that the plaintiff made a material misrepresentation in its application for insurance.

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the loss to the plaintiffs property, as claimed by the plaintiff, is not covered under the insurance policy issued by Ace to the plaintiff (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Skelos, J.P., Florio, Hall and Sgroi, JJ., concur.