Coral & Stones Unlimited Corp. v Certain Underwriters at Lloyds via Marsh S.A., Brussels, Belgium/Underwriters at Lloyds via HSBC London, U.K.

Coral & Stones Unlimited Corp. v Certain Underwriters at Lloyds via Marsh S.A., Brussels 2005 NY Slip Op 08201 [23 AD3d 202] November 3, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

Coral & Stones Unlimited Corp., Appellant,
v
Certain Underwriters at Lloyds via Marsh S.A., Brussels, et al., Respondents.

—[*1]Judgment, Supreme Court, New York County (Emily Jane Goodman, J.), entered February 2, 2005, dismissing the complaint, and bringing up for review an order, same court and Justice, entered December 22, 2004, which granted defendants' motion for leave to amend their answer to assert an affirmative defense of misrepresentation, and for summary judgment on that defense, unanimously affirmed, with costs. Appeal from the December 22, 2004 order unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

The court properly exercised its discretion in permitting defendants to amend their answer to interpose the defense of misrepresentation (see CPLR 3025 [b]; Masterwear Corp. v Bernard, 3 AD3d 305 [2004]), and in granting summary judgment based on that defense (see Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 104 AD2d 258 [1984]). Defendants conclusively established that plaintiff misrepresented a material fact on its application for jewelers block insurance (see Naghavi v New York Life Ins. Co., 260 AD2d 252 [1999]; Aguilar v United States Life Ins. Co. in City of N.Y., 162 AD2d 209 [1990]). Concur—Marlow, J.P., Nardelli, Williams, Sweeny and McGuire, JJ.