Maguire & Associates PLLC, Garden City, NY (Stephen R.
Macho of counsel), for appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York, NY
(Linda Fridegetto and Abraham E. Havkins of counsel), for
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D.
DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
action for a judgment declaring that an insurance policy
issued by the plaintiff to the defendant Xiao Wu Chen is void
ab initio and that the plaintiff is not required to defend or
indemnify Xiao Wu Chen in an underlying third-party action
entitled Sheng Hai Tong v K and K 7619, Inc.,
pending in the Supreme Court, Kings County, under Index No.
5456/11, the defendant K and K 7619, Inc., appeals from so
much of an order of the Supreme Court, Kings County (Bayne,
J.), dated September 30, 2014, as denied its motion, in
effect, for summary judgment declaring that the insurance
policy was not void ab initio and that the plaintiff is
required to defend and indemnify Xiao Wu Chen in the
underlying third-party action.
that the order is affirmed insofar as appealed from, with
March 2011, a defendant in this action, Sheng Hai Tong,
commenced an action entitled Sheng Hai Tong v K and K
7619, Inc., in the Supreme Court, Kings County, under
Index No. 5456/11 (hereinafter the underlying action),
seeking damages for injuries he alleged that he sustained
when he was renovating property owned by the defendant K and
K 7619, Inc. (hereinafter K and K), and leased by the
defendant Xiao Wu Chen, doing business as Family 99 Cent
Store (hereinafter Chen). In the underlying action, Tong
alleged that he severed his thumb when he was cutting plastic
floor tile in preparation for the opening of the business.
Chen had obtained insurance for the business from Leading
Insurance Group Insurance Company, Ltd. (hereinafter the
plaintiff). In the underlying action, K and K commenced a
third-party action against Chen to recover damages for
contractual and common-law contribution and/or
indemnification and breach of contract (hereinafter the
third-party action). Thereafter, the plaintiff commenced this
action seeking a judgment declaring that (1) the insurance
policy issued by it to Chen was void ab initio due to
material misrepresentations made by Chen during the
application process, and (2) it was not obligated to defend
or indemnify Chen under the insurance policy for claims set
forth in the underlying action or third-party action. K and K
thereafter moved in this action, in effect, for summary
judgment declaring that the insurance policy was not void ab
initio and that the plaintiff is required to defend and
indemnify Xiao Wu Chen in the third-party action. The Supreme
Court denied the motion in its entirety. K and K appeals.
establish the right to rescind an insurance policy, an
insurer must show that its insured made a material
misrepresentation of fact when he or she secured the
policy" (Interboro Ins. Co. v Fatmir, 89 A.D.3d
993, 993-994; see Novick v Middlesex Mut. Assur.
Co., 84 A.D.3d 1330, 1330; Varshavskaya v
Metropolitan Life Ins. Co., 68 A.D.3d 855, 856;
Zilkha v Mutual Life Ins. Co. of N.Y., 287 A.D.2d
713, 714). "A misrepresentation is material if the
insurer would not have issued the policy had it known the
facts misrepresented" (Interboro Ins. Co. v
Fatmir, 89 A.D.3d at 994; see Insurance Law
§ 3105[b]; Novick v Middlesex Mut. Assur. Co.,
84 A.D.3d at 1330; Varshavskaya v Metropolitan Life
Ins. Co., 68 A.D.3d at 856). The continued acceptance of
premiums by an insurer after learning of facts which would
allow for rescission of an insurance policy may constitute a
waiver of, or estoppel against, the insurer's right to
rescind (see Scalia v Equitable Life Assur. Socy. of
U.S., 251 A.D.2d 315, 315; see also United States
Life Ins. Co. in the City of N.Y. v Blumenfeld, 92
A.D.3d 487, 490; United States Life Ins. Co. in the City
of N.Y. v Grunhut, 83 A.D.3d 528, 529).
and K failed to establish its prima facie entitlement to
judgment as a matter of law. K and K failed to eliminate
triable issues of fact as to whether the plaintiff had a
basis to rescind the insurance policy based on Chen's
alleged material misrepresentation of fact when it secured
the policy. K and K also failed to eliminate triable issues
of fact as to whether the plaintiff was estopped from
rescinding the policy based on the policy's renewal.
Accordingly, the Supreme Court properly denied K and K's
motion, without regard to the sufficiency of the
plaintiff's submissions in opposition (see Alvarez v
Prospect Hosp., 68 N.Y.2d 320, 324).
K's remaining contention need not be addressed in ...