Opinion
15947 Index No. 32188/19E Case No. 2021–02313
05-17-2022
463 SADDLE UP TREMONT LLC, Plaintiff–Respondent, v. UNION MUTUAL FIRE INSURANCE COMPANY, Defendant–Appellant, Schaefer Enterprises, Inc., et al., Defendants–Respondents.
Hurwitz & Fine, P.C., Buffalo (Agnieszka A. Wilewicz of counsel), for appellant. Law Office of Craig A. Blumberg, New York (Craig A. Blumberg of counsel), for 463 Saddle Up Tremont LLC, respondent. L'Abbate, Balkan, Colavita & Contini, L.L.P., Melville (William T. McCaffery of counsel), for Schaefer Enterprises, Inc., respondent. Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola (Sandra J. LePorin of counsel), for Papa Restaurant Corp., respondent.
Hurwitz & Fine, P.C., Buffalo (Agnieszka A. Wilewicz of counsel), for appellant.
Law Office of Craig A. Blumberg, New York (Craig A. Blumberg of counsel), for 463 Saddle Up Tremont LLC, respondent.
L'Abbate, Balkan, Colavita & Contini, L.L.P., Melville (William T. McCaffery of counsel), for Schaefer Enterprises, Inc., respondent.
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola (Sandra J. LePorin of counsel), for Papa Restaurant Corp., respondent.
Mazzarelli, J.P., Oing, Moulton, Gonza´lez, Kennedy, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about June 15, 2021, which denied defendant Union Mutual Fire Insurance Company's motion for summary judgment, unanimously affirmed, without costs.
The court correctly denied Union Mutual's motion for summary judgment with leave to renew upon the completion of discovery. Union Mutual failed to establish, as a matter of law, either that the insured made false statements in its insurance application or that the alleged misrepresentations were material (see Kiss Constr. NY, Inc. v. Rutgers Cas. Inc. Co., 61 A.D.3d 412, 413, 877 N.Y.S.2d 253 [1st Dept. 2009] ). The affidavit relied upon by Union Mutual to establish that it would not have issued the policies if the insured had not made the alleged misrepresentations was conclusory, and insufficient to establish materiality (see Certain Underwriters at Lloyd's London v. Bioenergy Dev. Group, LLC, 189 A.D.3d 573, 575, 139 N.Y.S.3d 13 [1st Dept. 2020] ; Feldman v. Friedman, 241 A.D.2d 433, 434, 661 N.Y.S.2d 9 [1st Dept. 1997] ).
In any event, in opposition to Union Mutual's motion for summary judgment, plaintiff raised triable issues of fact as to whether Union Mutual waived its right to rescind the policy (see generally United States Life Ins. Co. in the City of N.Y. v. Blumenfeld, 92 A.D.3d 487, 488, 938 N.Y.S.2d 84 [1st Dept. 2012] ).