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Peerless Insurance Company v. Sears

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 2, 1970
34 A.D.2d 725 (N.Y. App. Div. 1970)

Opinion

April 2, 1970

Appeal from the Cayuga Special Term.

Present — Del Vecchio, J.P., Marsh, Witmer, Moule and Henry, JJ.


Order unanimously reversed, without costs, and motion for summary judgment granted declaring that plaintiff is not obligated to defend, and motion for order permitting defendant's attorneys to withdraw granted. Memorandum: In this action for a declaratory judgment that Peerless was not required to defend two actions brought against its assured the president of the assured was charged by the insurer with giving fraudulent information to the police, the Motor Vehicle Department and itself. The president of the assured, in an affidavit, admits the false information. The insurer disclaimed two days after receiving this information. The act of the president was the act of the corporation. ( Diamond v. Oreamuno, 29 A.D.2d 285, 287, affd. 24 N.Y.2d 494; People v. Rochester Ry. Light Co., 195 N.Y. 102, 105.) The failure to make fair and truthful disclosures was a breach of the insurance contract as a matter of law. ( National Grange Mut. Ins. Co. v. Austin, 23 A.D.2d 776; State Farm Mut. Auto. Ins. Co. v. Brown, 21 A.D.2d 742.) There was no waiver or estoppel on the part of the insurer as it had no knowledge of the facts until two days before the disclaimer ( S. E. Motor Hire Corp. v. New York Ind. Co., 255 N.Y. 69, 72) and its notice to disclaim was timely ( National Grange Mut. Liab. Co. v. Fino, 13 A.D.2d 10, 13).


Summaries of

Peerless Insurance Company v. Sears

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 2, 1970
34 A.D.2d 725 (N.Y. App. Div. 1970)
Case details for

Peerless Insurance Company v. Sears

Case Details

Full title:PEERLESS INSURANCE COMPANY, Appellant, v. FRANK L. SEARS, JR., Also Known…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 2, 1970

Citations

34 A.D.2d 725 (N.Y. App. Div. 1970)

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