Pipo Bar and Restaurant, Inc. v. Certain Underwriters at Lloyd's at London

• Court: New York Supreme Court — Appellate Division
• Citation: Pipo Bar and Restaurant, Inc. v. Certain Underwriters at Lloyd's at London, 15 A.D.3d 556, 792 N.Y.S.2d 82, 2005 NY Slip Op 1334 (N.Y. App. Div. 2005)
• Decision Date: 22 February 2005
• Docket Number: 2004-02043.
• Parties: PIPO BAR AND RESTAURANT, INC., Respondent, v. CERTAIN UNDERWRITERS AT LLOYD'S AT LONDON, Defendant and Third-Party Plaintiff-Appellant. TEOTONIO BRANCO et al., Third-Party Defendants-Respondents.

15 A.D.3d 556

792 N.Y.S.2d 82

2005 NY Slip Op 01334

PIPO BAR AND RESTAURANT, INC., Respondent, v. CERTAIN UNDERWRITERS AT LLOYD'S AT LONDON, Defendant and Third-Party Plaintiff-Appellant TEOTONIO BRANCO et al., Third-Party Defendants-Respondents.

2004-02043.

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

February 22, 2005.

In an action to recover damages for breach of an insurance contract, the defendant third-party plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered January 21, 2004, which denied its motion for summary judgment dismissing the complaint and for summary judgment in its favor against the third-party defendants on the issue of liability.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Westchester County, for an inquest on the issue of damages in connection with the third-party claim.

The Supreme Court erred in denying the appellant's motion for summary judgment. After the appellant established its prima facie entitlement to judgment as a matter of law, the plaintiff and third-party defendants failed to raise a triable issue of fact in opposition (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The policy issued to the plaintiff insured is rendered void where the plaintiff has "`willfully and fraudulently placed in the proofs of loss a statement of property lost which [it] did not possess, or has placed a...