Opinion
June 15, 1995
Appeal from the Supreme Court, New York County (Diane Lebedeff, J.).
In light of, inter alia, the fact that defendant failed to satisfactorily establish that it would not have issued the instant policy had it been aware of the applicant's alleged misrepresentations concerning its use of bicycle messengers, summary judgment was properly denied since there is a question as to whether the alleged misrepresentations were material and thus sufficient to void the instant policy (see, Courtney v. Dollar Sav. Bank, 54 A.D.2d 868, 869). Indeed, defendant insurer failed to provide any evidence of its policy and underwriting practices with respect to applicants whose businesses utilized bicycle messengers ( see, Di Pippo v. Prudential Ins. Co., 88 A.D.2d 631).
Concur — Rosenberger, J.P., Wallach, Rubin and Mazzarelli, JJ.