

Tower Ins. Co. of N.Y. v Atuana (2015 NY Slip Op 03038)





Tower Ins. Co. of N.Y. v Atuana


2015 NY Slip Op 03038


Decided on April 9, 2015


Appellate Division, First Department


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.



Decided on April 9, 2015

Gonzalez, P.J., Mazzarelli, Saxe, Manzanet-Daniels, Clark, JJ.


14777 153611/12

[*1] Tower Insurance Company of New York, Plaintiff-Appellant,
vJoseph Atuana, Defendant-Respondent, Eva Torres, Defendant.


Law Office of Max W. Gershweir, New York (Joseph S. Wiener of counsel), for appellant.
Scher & Scher, P.C., Great Neck (Daniel J. Scher of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered November 26, 2013, which, inter alia, denied plaintiff's motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff is not obligated to defend and indemnify the insured defendant under the homeowner's policy issued for his premises, and that the policy was properly cancelled. The Clerk is directed to enter judgment accordingly.
Despite the requirement in his policy and his representation in the application that his premises is a two-family dwelling, defendant insured provided a statement and deposition testimony which sufficiently demonstrated that the building was a three-family dwelling. The deed and City document indicating that the building was a two-family dwelling were irrelevant (see Hermitage Ins. Co. v LaFleur, 100 AD3d 426 [1st Dept 2012]), and the insurers' underwriter affidavit and guidelines established that the misrepresentation in the application was material (id.). The insured's claimed need for discovery provides no basis to forestall summary judgment, given that he neither sought any before the motion court nor now shows that it would have assisted him in opposing the motion.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 9, 2015
DEPUTY CLERK


