Classon Realty Corp. v Tower Ins. Co. of N.Y.

Classon Realty Corp. v Tower Ins. Co. of N.Y. 2009 NY Slip Op 09178 [68 AD3d 802] December 8, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Classon Realty Corp., Respondent,
v
Tower Insurance Company of New York, Appellant.

—[*1] Max W. Gershweir, New York, N.Y., for appellant.

Abraham, Lerner & Arnold, LLP, New York, N.Y. (James M. O'Connor of counsel), for respondent.

In an action to recover damages for breach of a contract of insurance, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated November 21, 2008, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The proponent of a motion for summary judgment must establish its entitlement to judgment as a matter of law by demonstrating that there are no triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The defendant failed to demonstrate that there are no triable issues of fact regarding whether the plaintiff insured made material misrepresentations during the defendant's investigation of the plaintiff's claim (see Christophersen v Allstate Ins. Co., 34 AD3d 515 [2006]; Fine v Bellefonte Underwriters Ins. Co., 725 F2d 179, 183 [1984], cert denied 469 US 874 [1984]). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint. Fisher, J.P., Angiolillo, Lott and Sgroi, JJ., concur.