Rickert v. Travelers Ins. Co.

• Decision Date: 01 March 1990
• Citation: 159 A.D.2d 758,551 N.Y.S.2d 985
• Parties: Gerald P. RICKERT, Sr., Appellant, v. TRAVELERS INSURANCE COMPANY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 985

551 N.Y.S.2d 985

159 A.D.2d 758

Gerald P. RICKERT, Sr., Appellant, v. TRAVELERS INSURANCE COMPANY et al., Respondents.

Supreme Court, Appellate Division Third Department.

March 1, 1990.

Louis-Jack Pozner, Albany, for appellant.

Bouck, Holloway, Kiernan & Casey (Mary Ann D. Allen, of counsel), Albany, for respondents.

Before KANE, J.P., and CASEY, MIKOLL, YESAWICH and LEVINE, JJ.

LEVINE, Justice.

Appeal from an order of the Supreme Court (Prior, Jr., J.), entered September 14, 1988 in Albany County, which granted defendants' motion for summary judgment dismissing the complaint.

On July 16, 1986, plaintiff's home was allegedly burglarized, resulting in a loss of more than $20,000 in jewelry. Plaintiff was insured under a homeowner's policy and a personal articles floater issued by defendant Travelers Insurance Company (hereinafter Travelers) which was obtained through defendant Philip H. Furie Insurance Agency. Plaintiff submitted a claim to Travelers and, pursuant to the terms of the insurance policy, Travelers demanded that plaintiff appear for an examination under oath.

At the examination, plaintiff was questioned about any past insurance claims filed by him. Plaintiff acknowledged two prior losses, a 1983 burglary of a prior residence which involved the loss of jewelry and personal property, and a 1985 claim which arose when plaintiff's Jeep was stolen in Boston, Massachusetts. Subsequent investigation by Travelers revealed that plaintiff had made six prior insurance claims for lost or stolen property since 1981. Plaintiff's additional claims involved a January 1981 theft of jewelry and tools from a prior residence for which plaintiff was paid $4,605; a September 1981 theft of property from plaintiff's vehicle in San Francisco, California, for which plaintiff was paid $2,500; a February 1984 theft of plaintiff's 1984 Dodge pickup truck for which plaintiff received $12,490; and a September 1985 loss of a ring by plaintiff for which he was paid $2,115.

Travelers subsequently rejected plaintiff's claim and plaintiff commenced this action against defendants. In their answer, defendants asserted three affirmative defenses: (1) that plaintiff lacked an insurable interest in the property, (2) that plaintiff had concealed and misrepresented material facts in his application for the homeowners' insurance policy, and (3) that plaintiff had concealed and misrepresented material facts at the examination under oath which preclude plaintiff from recovering under the terms of the policy. Defendants then moved for summary judgment based upon the third affirmative defense, asserting that no factual issues existed concerning plaintiff's willful failure to fully disclose his prior loss history at the examination under oath and that such concealment invalidates the policy of insurance. In opposition to the motion, plaintiff averred that his failure to disclose four out of six past insurance claims occurred because his "recollection was imperfect" and that there was no...