Colony Ins. Co. v Danica Group, LLC
Appellate Division, First Department
December 29, 2020
2020 NY Slip Op 08026 [189 AD3d 733]
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 3, 2021
Hollander Law Group, PLLC, Great Neck (Michael R. Strauss of counsel), for Danica Group, LLC, respondent.
Fleischner Potash LLP, New York (Alexandra E. Rigney of counsel), for Zurich American Insurance Company and Pav-Lak Industries, Inc., respondents.
Order, Supreme Court, New York County (David B. Cohen, J.), entered August 9, 2019, which denied plaintiff‘s motion for summary judgment rescinding certain insurance policies issued to defendant Danica Group, LLC, and order, same court and Justice, entered December 2, 2019, which, to the extent appealed from, denied plaintiff‘s motion to renew its motion for summary judgment, unanimously affirmed, with costs.
While Supreme Court correctly found that the issue of the materiality of Danica‘s misrepresentations in its applications for the insurance policies was precluded as a result of Danica‘s default, we write to clarify that waiver may be argued as an equitable defense to the remedy of rescission (see Colony Ins. Co. v Danica Group, LLC, 115 AD3d 453 [1st Dept 2014]). Concur—Webber, J.P., Mazzarelli, Gesmer, Moulton, González, JJ.