In an August 8, 2011 decision by Justice Oing the court denied an insurer’s motion for summary judgment for a declaration that an insurance policy was void and rescinded ab initio. The litigation stemmed from an insurance claim for water damage to a clothing store. The insurer performed an investigation after the claim was submitted. Based on the investigation the insurer argued that the insured made material misrepresentations on the insurance application when it failed to disclose prior insurance claims at the store’s location. The insurer also argued that the insured filed false documents in connection with the claim.
The court denied the insurer’s motion to declare the policy void because it failed to meet its “burden of providing clear and uncontradicted evidence of the materiality of the misrepresentation.” This included the insurer’s failure to provide evidence of its underwriting policies. The court further found that the insurer’s purported evidence that the insured filed false documents in support of his claim at best raised issues of fact which precluded summary judgment.
BW Sportswear, Inc. v. Those Certain Underwriters at Lloyd’s of London, Subscribing to Certificate Number 34665, Sup Ct, New York County, August 8, 2011, Oing, J, Index No. 603568/09.