THE INSURED MISREPRESENTED HER HOME ADDRESS AND THE INSURERS DISCLAIMED COVERAGE; THE CONCLUSORY AFFIDAVIT SUBMITTED BY THE INSURERS WAS NOT SUPPORTED BY DOCUMENTARY EVIDENCE (UNDERWRITING MANUALS, RULES, BULLETINS) AND THEREFORE DID NOT DEMONSTRATE THE MISREPRESENTATION WAS MATERIAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined the insurers which disclaimed coverage did not demonstrate the insured’s misrepresentation of her address was material. The insurers’ motion for summary judgment should not have been granted:

… [T]he insurers filed this action for a declaration of no-coverage and an injunction barring defendant medical providers from seeking any no-fault reimbursement under the claimant’s automobile insurance policy. The insurers alleged that the claimant had intentionally and materially misrepresented her home address in procuring the policy, as the proper policy address was not the Wappingers Falls address she had stated, but rather, an address in the Bronx.

The insurers submitted undisputed evidence that the claimant misrepresented her address based on her testimony at the Examination Under Oath (EUO). However, the insurers failed to establish, as a matter of law, that the alleged misrepresentation as to the correct address was a material misrepresentation. The affidavit of the insurers’ underwriter is conclusory and not supported by relevant documentary evidence such as underwriting manuals, rules, or bulletins …  Liberty Mut. Ins. Co. v Valera, 2022 NY Slip Op 05277, First Dept 9-27-22

Practice Point: To disclaim insurance coverage based upon a misrepresentation by the insured, the insurer must demonstrate the misrepresentation was material. Here, at the summary judgment stage, the insurers’ conclusory affidavit, which was not supported by underwriting manuals, roles or bulletins, was not enough.