Peerless Ins. Co. v. Sears
| Decision Date | 02 April 1970 |
| Citation | 312 N.Y.S.2d 347,34 A.D.2d 725 |
| Parties | PEERLESS INSURANCE COMPANY, Appellant, v. Frank L. SEARS, Jr., a/k/a Donald P. Jones, a/k/a Donald Philip Jones, Northeastern Tree Experts, Inc., Nick Cristello and Charles D. Allen, Respondents. Charles D. ALLEN, Plaintiff, v. Donald P. JONES and Northeastern Tree Experts, Inc., Defendants. Nick CRISTELLO, Plaintiff, v. Donald P. JONES and Northeastern Tree Experts, Inc., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Rauch, Gordon & Huffman, Dwight J. Huffman, Syracuse, for appellant, Peerless Ins. Co.
Albert Averbach, Seneca Falls, for respondents Cristello and Allen.
James H. Doran, Albany, for respondents Northeastern Tree Experts, Inc. and Frank L. Sears, Jr.
Before DEL VECCHIO, J.P., and MARSH, WITMER, MOULE and HENRY, JJ.
In this action for a declaratory judgment that Peerless was not required to defend two actions brought against its assured the President of the assured was charged by the insurer with giving fraudulent information to the police, the Motor Vehicle Department and itself. The president of the assured, in an affidavit, admits the false information. The insurer disclaimed two days after receiving this information. The act of the president was the act of the corporation. (Diamond v. Oreamuno, 29 A.D.2d 285, 287, 287 N.Y.S.2d 300, 303, affd. 24 N.Y.2d 494, 301 N.Y.S.2d 78, 248 N.E.2d 910; People v. Rochester Ry. and L. Co., 195 N.Y. 102, 105, 88 N.E. 22, 23). The failure to make fair and truthful disclosures was a breach of the insurance contract as a matter of law. (National Grange Mut. Ins. Co. v. Austin, 23 A.D.2d 776, 258 N.Y.S.2d 439; State Farm Mut. Automobile Ins. Co. v. Brown, 21 A.D.2d 742, 250 N.Y.S.2d 244) There was no waiver or estoppel on the part of the insurer as it had no knowledge of the facts until two days before the disclaimer (S. & E. Motor Hire Corp. v. N.Y. Indemnity Co., 255 N.Y. 69, 72, 174 N.E. 65, 66) and its notice to disclaim was timely (National Grange Mutual Liab. Co. v. Fino, 13 A.D.2d 10, 13, 212 N.Y.S.2d 684, 687).
Order unanimously reversed without costs and motion for summary judgment granted declaring that plaintiff is not obligated to defend, and motion for order permitting defendant's attorneys to withdraw granted.
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