Lema v. Tower Ins. Co. of N.Y.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MARK C. DILLON
• Citation: Lema v. Tower Ins. Co. of N.Y., 2014 NY Slip Op 5162, 119 A.D.3d 657, 990 N.Y.S.2d 231 (N.Y. App. Div. 2014)
• Decision Date: 09 July 2014
• Parties: Segundo LEMA, et al., respondents, v. TOWER INSURANCE COMPANY OF NEW YORK, appellant.

119 A.D.3d 657

990 N.Y.S.2d 231

2014 N.Y. Slip Op. 05162

Segundo LEMA, et al., respondents,

v.TOWER INSURANCE COMPANY OF NEW YORK, appellant.

Supreme Court, Appellate Division, Second Department, New York.

July 9, 2014.

Mound Cotton Wollan & Greengrass, New York, N.Y. (Kevin F. Buckley and Marc E. Haas of counsel), for appellant.

Lerner, Arnold & Winston, LLP, New York, N.Y. (Matthew Azus and Yasamin Roomina of counsel), for respondents.

MARK C. DILLON, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and BETSY BARROS, JJ.

In an action to recover the proceeds of a homeowners' insurance policy, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Parga, J.), entered May 10, 2013, which denied its motion, in effect, for summary judgment dismissing the complaint, and (2) an order of the same court entered November 4, 2013, which denied its motion for leave to renew and reargue its prior motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the appeal from so much of the order entered November 4, 2013, as denied that branch of the defendant's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the appeal from so much of the order entered November 4, 2013, as denied that branch of the defendant's motion which was for leave to renew is dismissed as academic in light of our determination of the appeal from the order entered May 10, 2013; and it is further,

ORDERED that the order entered May 10, 2013, is reversed, on the law, and the defendant's motion, in effect, for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

“To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy” ( Interboro Ins. Co. v. Fatmir, 89 A.D.3d 993, 993–994, 933 N.Y.S.2d 343;see Meah v. A. Aleem Constr., Inc., 105 A.D.3d 1017, 1019, 963 N.Y.S.2d 714). “A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented” ( Interboro Ins. Co. v. Fatmir, 89 A.D.3d at 994, 933 N.Y.S.2d 343;seeInsurance Law § 3105[b][1]; Novick v. Middlesex Mut. Assur. Co., 84 A.D.3d 1330, 924 N.Y.S.2d 296). “To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” ( Interboro Ins. Co. v. Fatmir, 89 A.D.3d at 994, 933 N.Y.S.2d 343 [internal quotation marks omitted]; see Varshavskaya v. Metropolitan Life Ins. Co., 68...