Perez v Castlepoint Ins. Co.

Annotate this Case

Download PDF

Perez v Castlepoint Ins. Co. 2018 NY Slip Op 32668(U) September 21, 2018 Supreme Court, Queens County Docket Number: 712369/16 Judge: Darrell L. Gavrin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] QUEENS COUNTY CLERK 10/19/2018 10:53 AM NYSCEF DOC. NO. 97 INDEX NO. 712369/2016 RECEIVED NYSCEF: 10/19/2018 NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE DARRELL L. GAVRIN Justice IA PART 27 FRANCISCO PEREZ, Index No. 712369/16 Motion Date May 22, 2018 Motion Cal. No. 12 Motion Seq. No. 2 Plaintiff, - againstCASTLEPOINT INSURANCE COMPANY, N.Y.A. SERVICES INC., and SIMON AGENCY N.Y. INC., Defendants. The following papers numbered E46 to E65, E68 to E73 and E75 read on this motion by defendant, Castlepoint Insurance Company ("defendant"), for summary judgment dismissing plaintiffs complaint as against defendant, pursuant to CPLR 3212. Papers Numbered Notice of Motion - Affirmation - Exhibits - Memorandum of Law ... E46 - E65 Affirmation in Opposition - Exhibits - Memorandum of Law ........... E68 - E73 Reply Affirmation ............................................................................... E75 Upon the foregoing papers, it is ordered that the motion is determined as follows: This action is for breach of contract and negligence. Plaintiff is the owner of premises located at 31-14 103rct Street, East Elmhurst, New York 11369 ("subject premises"), in the County of Queens, City and State of New York. On October 18, 2015, the subject premises was damaged as a result of a fire. Plaintiff subsequently submitted a claim against the insurance policy which defendant denied. Defendant moves for summary judgment on the basis that the insurance policy was issued only as a result of a material misrepresentation by plaintiff, which rendered the policy void from its inception. On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]). Once the proponent has met its burden, the opponent must then produce competent evidence in admissible form to establish the existence of a trial issue of fact (see Human v 1 of 2 [*FILED: 2] QUEENS COUNTY CLERK 10/19/2018 10:53 AM NYSCEF DOC. NO. 97 INDEX NO. 712369/2016 RECEIVED NYSCEF: 10/19/2018 Queens County Bancorp, Inc., 307 AD2d 984 [2d Dept 2003], citing Zuckerman v City ofNew York, 49 NY2d 557 [1980]). To establish its right to rescind an insurance policy, an insurer must demonstrate that had it known the facts misrepresented, it would not have issued the policy (Jnterboro Ins. Co. v Fatmir, 89 AD3d 993 [2d Dept 2011]; Insurance Law§ 3105[b]). In the case at bar, defendant has met its prima facie burden evidencing entitlement to summary judgment herein. In support of its motion, defendant submits, among other things, a copy of the Dwelling Fire Application and deposition testimony of plaintiff. The record reflects that the policy provided coverage for a one-family dwelling as was represented in the insurance application when in fact, the subject premises was a three-family dwelling. In opposition, plaintiff failed to raise an issue of fact. Plaintiffs contention that his broker completed the application and signed it on plaintiffs behalf without plaintiffs authority, does not warrant denial of the instant motion. "[A] material misrepresentation, even if innocent or unintentional, is sufficient to warrant recision of an insurance policy" (Joseph v Interboro Ins. Co., 144 AD3d 1105 [2d Dept 2016]). Indeed, plaintiff"ratified the representation contained in the [A]pplication by accepting the policy for [a one-family home] and permitting it to be renewed for years thereafter on the same terms" (Morales v Castlepoint Ins. Co., 125 ADd3d 947 [2d Dept 2015]). Moreover, contrary to plaintiffs interpretation, the underwriting guidelines' eligibility reference to "one and two owner and tenant-occupied dwellings" cannot be inferred to mean a three-family dwelling. Accordingly, this motion by defendant for summary judgment is granted and the complaint is dismissed only as against defendant, Castlepoint Insurance Company. The amended caption shall read as follows: FILED SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS OCT 1 9 2018 FRANCISCO PEREZ, · COUNTY CLERK QUEENS COUNTY Plaintiff, - against N.Y.A. SERVICES INC. and SIMON AGENCY N.Y. INC., Defendants. Dated: September 21, 2018 DARRELL L. -2- 2 of 2 , J.S.C.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.