| Arch Specialty Ins. Co. v Kam Cheung Constr., Inc. |
| 2013 NY Slip Op 02025 [104 AD3d 599] |
| March 26, 2013 |
| Appellate Division, First Department |
| Arch Specialty Insurance Company,Respondent, v Kam Cheung Construction, Inc.,Appellant. |
—[*1] Goldberg Segalla LLP, Albany (Matthew S. Lerner of counsel), forrespondent.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered July 23,2012, which denied defendant's motion for summary judgment, granted plaintiff's crossmotion for summary judgment, and declared the subject policy of insurance void,unanimously affirmed, without costs.
Defendant's misrepresentation on its application was material as a matter of lawbecause, had the insurer known the true facts, it would have refused "to make suchcontract" (Insurance Law § 3105 [b] [1]) either by not issuing the policy or bycharging a higher premium (see Interested Underwriters at Lloyd's v H.D.I. IIIAssoc., 213 AD2d 246 [1st Dept 1995]; see also Matter of Union Indem. Ins. Co.of N.Y., 89 NY2d 94, 106-107 [1996]). The affidavit of the insurer's underwriterand the rating guidelines used by its underwriters were sufficient proof of itsunderwriting practices to demonstrate that, had the true facts been known, the policywould not have been issued for the premium charged (see Kiss Constr. NY, Inc. v RutgersCas. Ins. Co., 61 AD3d 412, 414 [1st Dept 2009]). In view of the foregoing, weneed not address defendant's claim for attorneys' fees. Concur—Friedman, J.P.,Moskowitz, DeGrasse, Richter and Gische, JJ.