Opinion
March 9, 1987
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that the interlocutory judgment is affirmed insofar as appealed from, with costs.
The evidence adduced at the trial established that the plaintiff's insurance broker had inadvertently conveyed to the insurer's agent the incorrect address of the premises whose contents were to be insured. Although even an innocently made factual misrepresentation may serve to void an insurance contract, such is the case only if "knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract" (Insurance Law § 3105 [b]). At bar, the insurer failed to establish that predicate fact, and, accordingly, the trial court acted properly in declining to void the contract. Moreover, it was established on cross-examination of the insurer's own underwriting manager that he would issue a policy on a frame structure in a "prime area" and that the location of the plaintiff's store was in a "prime area". Under these circumstances, the trial court cannot be said to have acted improperly in concluding that the plaintiff was entitled to reformation of the policy to reflect the actual address of his store (see, Court Tobacco Stores v. Great E. Ins. Co., 43 A.D.2d 561; Le Gendre v. Scottish Union Natl. Ins. Co., 95 App. Div. 562).
We have considered the appellant's remaining contentions and have found them to be without merit. Mangano, J.P., Thompson, Brown and Eiber, JJ., concur.