Summary
finding plaintiffs' statement that they owned the insured property at the time of the loss to be an intentional misrepresentation because documentary evidence conclusively established plaintiffs' knowledge that legal title to the property was actually held by the City of New York
Summary of this case from D'Andrea v. Encompass Ins. Co. of Am.Opinion
March 25, 1993
Appeal from the Supreme Court, New York County (Myriam Altman, J.).
The action was properly dismissed because plaintiffs' sworn proof of loss statement contained the material misrepresentations that they owned the insured property at the time of the loss, that no other person had any interest in or encumbrances on the property, and that there had been no change of interest in the property since issuance of the policy of insurance. Documentary evidence conclusively establishes that when plaintiffs presented the proof of loss statement, they knew that legal title to the property was held by the City of New York at the time of the loss, as a result of an in rem tax foreclosure action, and that there were outstanding tax liens totaling approximately $6,143.87 on the insured property. It is well settled that questions as to ownership, liens and encumbrances, and changes of interest in property are material as a matter of law (Claflin v. Commonwealth Ins. Co., 110 U.S. 81). Plaintiffs' excuses for these misrepresentations were, as the IAS Court found, obvious fabrications intended to overcome summary judgment (see, American Realty Co. v. 64 B Venture, 176 A.D.2d 226, 227, lv denied 79 N.Y.2d 756). Accordingly, plaintiffs' intentional misrepresentation of material facts in the proof of loss statement rendered the policy void in accordance with its terms (Sunbright Fashions v. Greater N.Y. Mut. Ins. Co., 34 A.D.2d 235, affd 28 N.Y.2d 563).
We have reviewed plaintiffs' remaining claims and find them to be without merit.
Concur — Milonas, J.P., Rosenberger, Wallach and Ross, JJ.