“Warranty” Need Not Be Set Forth In Any Special Manner—Here the Language on the Declaration Page that “Warranted” a Fire Alarm Will Be “Fully Operational” Was a Valid Condition Precedent to the Insured’s Liability—Summary Judgment In Favor of Insurer Properly Granted
The Second Department determined the language on the declaration page of a fire insurance policy constituted a “warranty” that the fire alarm will be “fully operational,” meaning that the alarm must be activated at the time of the fire or coverage can be disclaimed The alarm was not activated at the time of the fire and defendant’s motion for summary judgment was therefore properly granted:
Insurance Law § 3106(a) provides:
“In this section warranty means any provision of an insurance contract which has the effect of requiring, as a condition precedent of the taking effect of such contract or as a condition precedent of the insurer’s liability thereunder, the existence of a fact which tends to diminish, or the non-existence of a fact which tends to increase, the risk of the occurrence of any loss, damage, or injury within the coverage of the contract” (Insurance Law § 3106[a] [emphasis added]).
“As a general matter, warranties represent a promise by the insured to do or not to do some thing that the insurer considers significant to its risk of liability under an insurance contract” … . Here, the provision in the “special conditions” section of the declaration page which states “[w]arranted . . . burglar alarm will be [f]ully operational throughout the period of the policy” meets the definition of a warranty pursuant to the Insurance Law, since requiring the plaintiff to have a fully operational burglar alarm would be significant to the defendant’s risk of liability under the insurance policy. Contrary to the plaintiff’s contention, there is no requirement that the warranty be set forth in any particular manner, as long as its effect is to create a condition precedent to the insurer’s liability. Indeed, the use of the term “warranted” at the beginning of the subject provision establishes that the provision was a warranty as defined by the Insurance Law … . Triple Diamond Cafe Inc v Those Certain Underwriters at Lloyd’s London, 2015 NY Slip Op 00527, 2nd Dept 1-21-15