| N.Y. App. Div. | Dec 19, 1986
— Order unanimously affirmed, with costs. Memorandum: Special Term correctly denied the motion of defendant, a fire insurance company, for summary judgment dismissing the complaint of its insured seeking recovery upon a policy of fire insurance. Defendant’s motion was based upon its affirmative defense that plaintiff had concealed material facts by using a fictitious name in his application for the policy and by failing to reveal the fact that he was a fugitive from justice.
Under the rules applying to forms of insurance other than marine, an applicant is ordinarily permitted to remain silent on matters concerning which he is not questioned. His insurance policy may be voided for concealment only when he conceals matters material to the risk and he does so in bad faith with intent to deceive the insurer (Stecker v American Home Fire Assur. Co., 299 NY 1, 5-6; Sebring v Fidelity-Phenix Fire Ins. Co., 255 NY 382, 385-387; Lighton v Madison-Onondaga Mut. Fire Ins. Co., 106 AD2d 892). Here there are questions of fact concerning plaintiff’s intent and the materiality of the matters concealed. (Appeal from order of Supreme Court, Erie County, Ricotta, J. — summary judgment.) Present —Doerr, J. P., Denman, Boomer, Pine and Lawton, JJ.