Colony Ins. Co. v. Danica Group, LLC , 2020 NY Slip Op 08026 ( 2020 )

Colony Ins. Co. v Danica Group, LLC (2020 NY Slip Op 08026)

Colony Ins. Co. v Danica Group, LLC

2020 NY Slip Op 08026

Decided on December 29, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 29, 2020
Before: Webber, J.P., Mazzarelli, Gesmer, Moulton, González, JJ.

Index No. 116200/10 Appeal No. 12742N-12742NA Case No. 2020-00192

[*1]Colony Insurance Company, Plaintiff-Appellant,

v

Danica Group, LLC, Defendant-Respondent, Zurich American Insurance Company et al., Defendants-Intervenors-Respondents.

Kaufman Dolowich & Voluck, LLP,Woodbury (Eric B. Stern of counsel), for appellant.

Hollander Law Group, PLLC, Great Neck (Michael R. Strauss of counsel), for Danica Group, LLC, respondent.

Fleischner Potash LLP, New York (Alexandra E. Rigney of counsel), for Zurich American Insurance Company and Pav-Lak Industries, Inc., respondents.

Order, Supreme Court, New York County (David B. Cohen, J.), entered

August 9, 2019, which denied plaintiff's motion for summary judgment rescinding certain insurance policies issued to defendant Danica Group, LLC, and order, same court and Justice, entered December 2, 2019, which, to the extent appealed from, denied plaintiff's motion to renew its motion for summary judgment, unanimously affirmed, with costs.

While Supreme Court correctly found that the issue of the materiality of Danica's misrepresentations in its applications for the insurance policies was precluded as a result of Danica's default, we write to clarify that waiver may be argued as an equitable defense to the remedy of rescission (see Colony Ins. Co. v Danica Group, LLC, 115 AD3d 453 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 29, 2020