Opinion
April 25, 1991
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
Plaintiff commenced the underlying action to reform a fire insurance policy procured for plaintiff by Prudential's alleged representative, defendant Jorge Aristizabal, and issued by defendant New York Property, so as to reflect the correct address of plaintiff's fire-damaged premises, 103-03 41st Avenue, Corona, New York. Plaintiff also sought monetary damages premised upon breach of contract and negligence in procuring the policy.
Upon examination of the record, we find that triable issues of fact, precluding summary judgment in favor of defendants New York Property and Prudential, exist as to whether the plaintiff was entitled to the equitable remedy of reformation upon the theory of mutual mistake (Crivella v. Transit Cas. Co., 116 A.D.2d 1007, 1008), whether knowledge of the facts misrepresented would have led to a refusal by the insurer to issue the policy as to which issue defendant carrier bears the burden of proof (Abulaynain v New York Merchant Bakers Mut. Fire Ins. Co., 128 A.D.2d 575, 576), and as to whether the acts and statements of defendant Aristizabal, in procuring the insurance coverage on plaintiff's behalf were adopted or ratified by his alleged principal, defendant Prudential. (Ford v. Unity Hosp., 32 N.Y.2d 464, 472.)
Concur — Murphy, P.J., Milonas, Ellerin, Wallach and Kassal, JJ.