THE ALLEGED MISPRESENTATION IN PLAINTIFF’S APPLICATION FOR CAR INSURANCE, I.E., THAT SHE LIVED IN NEW ROCHELLE AND THE CAR WOULD BE GARAGED THERE WHEN IN FACT SHE LIVED IN BROOKLYN AND THE CAR WOULD BE GARAGED THERE, WAS NOT DEMONSTRATED TO HAVE BEEN “MATERIAL” AS A MATTER OF LAW; THE INSURER HAD DENIED COVERAGE BASED UPON THE ALLEGED MISREPRESENTATION; THE INSURER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the alleged misrepresentation in plaintiff’s application for car insurance was not demonstrated to have been “material” as a matter of law. Therefore defendant-insurer’s motion for summary judgment in this hit-and-run accident case should not have been granted. Plaintiff was alleged to have stated in her application that she lived in New Rochelle and the car would be garaged there, when in fact she lived in Brooklyn and the care would be garaged there:

The plaintiff allegedly was injured in a hit-and-run motor vehicle accident … . At the time of the accident, the plaintiff’s vehicle was insured by the defendant, Mercury Casualty Company (hereinafter Mercury). The plaintiff commenced this action to recover damages for breach of the insurance policy, alleging that Mercury breached the policy by failing to make payment on her claim under an uninsured motorists endorsement to the policy in connection with the subject accident. …Mercury moved … for summary judgment dismissing the complaint on the ground that it had no obligation to provide the plaintiff with benefits under the “fraud or misrepresentation” provision of the insurance policy. …

Mercury failed to demonstrate the materiality of the misrepresentation complained of, as a matter of law. Although Mercury submitted an affidavit of an underwriting supervisor who stated that it would have issued the plaintiff a different policy with a higher premium had the plaintiff disclosed her Brooklyn address, the underwriting guidelines submitted by Mercury do not state that it does not insure vehicles kept in Brooklyn or that policies insuring vehicles kept in Brooklyn are assessed a higher premium than those garaged in New Rochelle … . Rodriguez v Mercury Cas. Co., 2022 NY Slip Op 04656, Second Dept 7-20-22

Practice Point: To warrant a denial of coverage based on a misrepresentation in an application for insurance, the misrepresentation must be “material.” Here there was a question of fact on that question and the insurer’s motion for summary judgment should have been denied. It was alleged plaintiff stated in her application she lived in New Rochelle and the car would be garaged there, when in fact she lived in Brooklyn and the car was garaged there. The underlying incident was a hit-and-run accident.