Kirkpatrick v. State Farm Fire & Cas. Co.

• Decision Date: 09 November 1998
• Citation: 255 A.D.2d 363,679 N.Y.S.2d 688
• Parties: 1998 N.Y. Slip Op. 9985 Judith KIRKPATRICK, Respondent, v. STATE FARM FIRE & CASUALTY COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 688

679 N.Y.S.2d 688

1998 N.Y. Slip Op. 9985

Judith KIRKPATRICK, Respondent, v. STATE FARM FIRE & CASUALTY COMPANY, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 9, 1998.

Mound, Cotton & Wollan, New York City (Jeffrey C. Crawford and Frederic R. Mindlin, of counsel), for appellant.

Konheim, Halpern & Bleiwas, New York City (Thomas Torto, of counsel), for respondent.

Before BRACKEN, J.P., and PIZZUTO, FRIEDMANN and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover the proceeds of an insurance policy, the defendant appeals from (1) an order of the Supreme Court, Queens County (Lonschein, J.), dated October 15, 1997, which denied its motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated March 16, 1998, which denied its motion, in effect, to renew.

ORDERED that the orders are affirmed, with one bill of costs.

The defendant contends that an insurance policy it issued to the plaintiff was void due to misrepresentations and false statements made by the plaintiff on the insurance application and at her examination under oath, respectively. However, with regard to the insurance application, the defendant has failed to demonstrate that, as a matter of law, the misinformation was material (see, Sonkin Assocs. v. Columbian Mut. Life Ins. Co., 150 A.D.2d 764, 765, 541 N.Y.S.2d 611; Ferris v. Columbian Mut. Ins. Co., 190 A.D.2d 1061, 1063, 593 N.Y.S.2d 683; Wittner v. IDS Ins. Co., 96 A.D.2d 1053, 466 N.Y.S.2d 480; Insurance Law § 3105[b] ). With regard to the plaintiff's false statements made at her examination under oath, the defendant has failed to demonstrate, as a matter of law, that the plaintiff intended to deceive or defraud it when she made the statements (see, Deitsch Textiles v. New York Prop. Ins. Underwriting Assn., 62 N.Y.2d 999, 1001, 479 N.Y.S.2d 487, 468 N.E.2d 669; Jonari Mgt. Corp. v. St. Paul Fire & Mar. Ins. Co., 58 N.Y.2d 408, 417, 461 N.Y.S.2d 760, 448 N.E.2d 427; Fine v. Bellefonte Underwriters Ins. Co., 758 F.2d 50 [2d Cir.1985], cert. denied 474 U.S. 826, 106 S.Ct. 86, 88 L.Ed.2d 70).

The court also properly denied the defendant's motion, in effect, to renew, as the additional evidence was neither newly discovered nor unavailable to the defendant at the time of the prior motion (see generally, Cannistra v. Gibbons, 224 A.D.2d 570, 571, 639 N.Y.S.2d 48; Foley v. Roche, 68 A.D.2d 558, 568, 418 N.Y.S.2d 588).