Opinion
12742N 12742NA Index No. 116200/10 Case No. 2020-00192
12-29-2020
COLONY INSURANCE COMPANY, Plaintiff–Appellant, v. DANICA GROUP, LLC, Defendant–Respondent, Zurich American Insurance Company et al., Defendants–Intervenors–Respondents.
Kaufman Dolowich & Voluck, LLP, Woodbury (Eric B. Stern of counsel), for appellant. Hollander Law Group, PLLC, Great Neck (Michael R. Strauss of counsel), for Danica Group, LLC, respondent. Fleischner Potash LLP, New York (Alexandra E. Rigney of counsel), for Zurich American Insurance Company and Pav–Lak Industries, Inc., respondents.
Kaufman Dolowich & Voluck, LLP, Woodbury (Eric B. Stern of counsel), for appellant.
Hollander Law Group, PLLC, Great Neck (Michael R. Strauss of counsel), for Danica Group, LLC, respondent.
Fleischner Potash LLP, New York (Alexandra E. Rigney of counsel), for Zurich American Insurance Company and Pav–Lak Industries, Inc., respondents.
Webber, J.P., Mazzarelli, Gesmer, Moulton, Gonza´lez,JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered August 9, 2019, which denied plaintiff's motion for summary judgment rescinding certain insurance policies issued to defendant Danica Group, LLC, and order, same court and Justice, entered December 2, 2019, which, to the extent appealed from, denied plaintiff's motion to renew its motion for summary judgment, unanimously affirmed, with costs.
While Supreme Court correctly found that the issue of the materiality of Danica's misrepresentations in its applications for the insurance policies was precluded as a result of Danica's default, we write to clarify that waiver may be argued as an equitable defense to the remedy of rescission (see Colony Ins. Co. v. Danica Group, LLC, 115 A.D.3d 453, 984 N.Y.S.2d 2 [1st Dept. 2014] ).