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Classon Realty Corp. v. Tower Insurance Company of New York

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 8, 2009

CLASSON REALTY CORP., RESPONDENT,
v.
TOWER INSURANCE COMPANY OF NEW YORK, APPELLANT.

In an action to recover damages for breach of a contract of insurance, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated November 21, 2008, which denied its motion for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, PLUMMER E. LOTT and SANDRA L. SGROI, JJ.

(Index No. 32189/05)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The proponent of a motion for summary judgment must establish its entitlement to judgment as a matter of law by demonstrating that there are no triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). The defendant failed to demonstrate that there are no triable issues of fact regarding whether the plaintiff insured made material misrepresentations during the defendant's investigation of the plaintiff's claim (see Christophersen v Allstate Ins. Co., 34 AD3d 515; Fine v Bellefonte Underwriters Ins. Co., 725 F2d 179, 183, cert denied 469 US 874). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

FISHER, J.P., ANGIOLILLO, LOTT and SGROI, JJ., concur.

20091208

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