Latha Restaurant Corp. v. Tower Insurance Company

• Court: New York Supreme Court — Appellate Division
• Citation: Latha Restaurant Corp. v. Tower Insurance Company, 38 A.D.3d 321, 831 N.Y.S.2d 411, 2007 NY Slip Op 2034 (N.Y. App. Div. 2007)
• Decision Date: 15 March 2007
• Docket Number: 509.
• Parties: LATHA RESTAURANT CORP., Doing Business as MARATHON DINER, Appellant, v. TOWER INSURANCE COMPANY, Respondent.

38 A.D.3d 321

831 N.Y.S.2d 411

2007 NY Slip Op 02034

LATHA RESTAURANT CORP., Doing Business as MARATHON DINER, Appellant, v. TOWER INSURANCE COMPANY, Respondent.

509.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided March 15, 2007.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered January 19, 2006, which, in this action to recover insurance proceeds, granted the motion of defendant Tower Insurance Company for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff's proof of loss statement included duplicative items, items in which it demonstrably had no insurable interest and a representation of loss attributable to the expense of debris removal, an expense it later admitted it never incurred. Even if these items were credited, plaintiff's demonstrated losses amounted to only $275,000. The nearly $400,000 remainder of plaintiff's claimed loss in its proof of loss statement remains unaccounted for and unexplained. Overvaluation of insured property raises a presumption of fraud in proportion as to the excess, and such presumption becomes conclusive where, as here, the insurer demonstrates that the difference between the amounts claimed in the proof of loss and the losses actually shown to have been sustained are grossly disparate and without reasonable explanation (see Saks & Co. v Continental...