Lufthansa Cargo, AG v New York Mar. & Gen. Ins. Co.

Lufthansa Cargo, AG v New York Mar. & Gen. Ins. Co. 2007 NY Slip Op 04358 [40 AD3d 444] May 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

Lufthansa Cargo, AG, Respondent,
v
New York Marine and General Insurance Company, Appellant.

—[*1] McMahon, Martine & Gallagher, LLP, New York (Patrick W. Brophy of counsel), for appellant.

Biedermann, Hoenig & Ruff, P.C., New York (Peter H. Cooper of counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered July 31, 2006, which, inter alia, granted plaintiff's cross motion for summary judgment declaring that plaintiff additional insured is entitled to the full benefits of the insurance contract issued by defendant insurer, unanimously affirmed, with costs.

Under New York law, "each individual additional insured . . . must be treated as if separately covered by the policy and indeed as if he . . . had a separate policy of his own" (Greaves v Public Serv. Mut. Ins. Co., 5 NY2d 120, 124 [1959]), even where, as here, the policy is issued based on a material misrepresentation by the primary insured (see BMW Fin. Servs. v Hassan, 273 AD2d 428 [2000], lv denied 95 NY2d 767 [2000]). Accordingly, plaintiff additional insured was entitled to coverage under the subject policy, notwithstanding the circumstance that the policy had been issued based upon a misrepresentation by the primary insured and was void as to that party. Concur—Andrias, J.P., Saxe, Williams, Gonzalez and Kavanagh, JJ.