Summary
finding that the insurer's evidence, consisting of conclusory deposition testimony and underwriting practices not in effect at the time of the application, was insufficient to establish materiality as a matter of law and a fact question remained for the jury
Summary of this case from Banco Bradesco S.A. v. Steadfast Ins. Co.Opinion
December 16, 1997
Appeal from the Supreme Court, New York County (Carol Huff, J.).
Defendant's submission of evidence of the underwriting practices it followed two years after it accepted plaintiff's application for insurance, coupled with conclusory deposition testimony of its underwriter, was insufficient to meet its burden of establishing that plaintiff's misrepresentations were material as a matter of law ( see, Alaz Sportswear v. Public Serv. Mut. Ins. Co., 195 A.D.2d 357; Lindenbaum v. Equitable Life Assur. Socy., 5 A.D.2d 651). Here, the materiality of the failure to disclose the prior loss is a question of fact for the jury ( see, Alaz Sportswear v. Public Serv. Mut. Ins. Co., supra; see also, Ebisons Harounian Imports v. Travelers Indem. Co., 195 A.D.2d 371).
Concur — Ellerin, J. P., Wallach, Mazzarelli, Andrias and Colabella, JJ.