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February 6, 1998


The opinion of the court was delivered by: SCULLIN


 Plaintiffs, Nationwide Mutual Fire Insurance Company and Nationwide Mutual Insurance Company (collectively "Nationwide"), brought this action seeking the rescission of a homeowners insurance policy and an automobile insurance policy issued to the Defendants, Serafina Pascarella and Antonio Pascarella. The Court has subject matter jurisdiction to entertain this action under jurisdiction to entertain this action under 28 U.S.C. ┬ž 1332. Presently before the Court is Nationwide's motion for summary judgment brought pursuant to Rule 56(c) of the Federal Rules of Civil Procedure.


 On February 7, 1994, Serafina Pascarella submitted a written and signed application to Nationwide for automobile insurance. A question on the application inquired whether she or any household member had any outstanding judgments against them in the past seven years. The answer to the question was "no." Based on this representation, Nationwide issued Century II Auto Policy number 66P479310 to the Defendants.

 On November 3, 1995, Antonio Pascarella submitted a written and signed application for homeowners insurance seeking to insure the Defendants' primary residence located at 7755 Tirrell Hill, Liverpool, New York. Questions on the application included: (1) whether there were any past judgments against the applicant or household member; and (2) whether there were any prior losses to or in connection with the property. The answers the Defendant provided for each question was "no." Based upon these representations, Nationwide issued Golden Blanket Homeowners Insurance Policy number 6631HO116451 to the Defendants.

 On August 22, 1996, the Defendants' residence and automobile were damaged and/or destroyed by fire. Thereafter, the Defendants submitted insurance claims to Nationwide under both policies. During the course of an investigation, Nationwide discovered that: (1) at the time the automobile insurance application was submitted, four outstanding judgments existed against Defendant Antonio Pascarella; and (2) at the time the homeowners insurance application was signed, six outstanding judgments and six prior losses in connection with the primary residence existed against the Defendants. Because the investigation revealed misrepresentations in the applications, Nationwide refused to honor the Defendants' loss claims and brought this action to rescind both policies on the ground of material misrepresentation.

 Presently, Nationwide seeks summary judgment on the ground that the misrepresentations regarding the outstanding judgments and prior losses were material as a matter of law.


 Under Federal Rule of Civil Procedure 56(c), summary judgment is warranted if, after reviewing all the evidence, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has set forth the basis for its motion, it is incumbent on the non-moving party to come forth with specific facts showing that there are genuine issues. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. See id.

 Additionally, under Local Rule 7.1(f), upon bringing a summary judgment motion, the moving party must serve and file a statement of undisputed material facts. *fn1" See N.D.N.Y.L.R. 7.1(b)(f). In response, the non-moving party is required to submit a statement listing the material facts the non-moving party contends are in dispute. *fn2" See id. If the non-moving party fails to do this, the material facts as set forth in the moving party's statement are deemed admitted. See id.

 In this case, Nationwide, as the movant, submitted its Rule 7.1(f) Statement of Undisputed Material Facts. Defendants, however, did not file a responding statement. Therefore, Defendants admit the following material facts as set forth in Nationwide's statement: (1) Defendants made misrepresentations in the insurance applications; and (2) Nationwide relied on these false statements by issuing both policies. Thus, the only issue before the Court is whether the misrepresentations were "material" as a matter of law. *fn3"

 I. The Automobile Insurance Policy

 Nationwide argues that Defendant Serafina Pascarella falsely represented that there were no outstanding judgments against her or any member of her household. Under the underwriting guidelines for the Century II Auto Policy, Nationwide contends it is prohibited from issuing a policy to any individual who has any outstanding judgments within the past seven years. Defendants have not set forth any ...

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