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EVEN IF THE MISREPRESENTATION THE HOME WAS TO BE OWNER-OCCUPIED WAS INNOCENTLY MADE, RESCISSION OF THE FIRE INSURANCE POLICY WAS JUSTIFIED.

The Second Department determined defendant insurer properly rescinded the plaintiffs’ fire insurance policy based upon the plaintiffs’ misrepresentation the residence would be owner-occupied. The court noted that a misrepresentation can be innocently made and still trigger rescission. The court also found that the broker had no obligation to make sure the insurance application was properly filled out by the plaintiffs:

Here, [the insurer] established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the plaintiffs’ application for insurance contained a misrepresentation regarding whether the premises would be owner occupied and that it would not have issued the subject policy if the application had disclosed that the subject premises would not be owner occupied … .

In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs admit that, at the time the application was completed, they did not intend to occupy the premises. Thus, contrary to the plaintiffs’ contentions, although the application was completed prior to closing and prior to the inception of the policy, the representation therein that the premises was an owner-occupied primary residence established, in effect, a material misrepresentation of a then existing fact that the premises would be owner occupied, which was sufficient for rescission under Insurance Law § 3105 … . Joseph v Interboro Ins. Co., 2016 NY Slip Op 08050, 2nd Dept 11-30-16

 

INSURANCE LAW (EVEN IF THE MISREPRESENTATION THE HOME WAS TO BE OWNER-OCCUPIED WAS INNOCENTLY MADE, RESCISSION OF THE FIRE INSURANCE POLICY WAS JUSTIFIED)/CONTRACT LAW (INSURANCE POLICY, EVEN IF THE MISREPRESENTATION THE HOME WAS TO BE OWNER-OCCUPIED WAS INNOCENTLY MADE, RESCISSION OF THE FIRE INSURANCE POLICY WAS JUSTIFIED)/MATERIAL MISREPRESENTATION (INSURANCE POLICY, EVEN IF THE MISREPRESENTATION THE HOME WAS TO BE OWNER-OCCUPIED WAS INNOCENTLY MADE, RESCISSION OF THE FIRE INSURANCE POLICY WAS JUSTIFIED)

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