Opinion
November 3, 1994
Appeal from the Supreme Court, New York County (Joan B. Lobis, J.).
Plaintiff seeks to have a policy of insurance previously issued to defendant Fashion Avenue Knits declared void ab initio as a result of various misrepresentations made to plaintiff by defendant broker Newport Coverage Corp. Fashion Avenue seeks to recover for losses sustained between the date a notice of Cancellation was issued but prior to the cancellation date stated therein, or alternatively, against Newport for insurance broker malpractice.
The court properly denied summary judgment to plaintiff as the question of whether the misrepresentation is material pursuant to Insurance Law § 3105 presents a question of fact for the jury (see, Continental Ins. Co. v. RLI Ins. Co., 161 A.D.2d 385, 387), and the evidentiary statements presented were insufficient to conclusively establish that the misrepresentations regarding the number of Fashion Avenue's outside contractors were material (see, Wittner v. IDS Ins. Co., 96 A.D.2d 1053). Disputed issues of fact also exist as to whether plaintiff should be estopped from declaring the policy void ab initio based on its action in sending a prospective notice of cancellation, since the evidence was insufficient to determine when plaintiff knew of the total number of outside contractors (see, BWA Corp. v. Alltrans Express U.S.A., 112 A.D.2d 850, 853).
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Tom, JJ.