Case Information

CORAL & STONES UNLIMITED CORP., Appellant, v CERTAIN UNDERWRITERS AT LLOYDS VIA MARSH S.A., BRUSSELS, et al., Respondents

Supreme Court, Appellate Division, First Department, New York

February 2, 2005

803 N.Y.S.2d 526

Judgment, Supreme Court, New York County (Emily Jane Goodman, J.), entered February 2, 2005, dismissing the complaint, and bringing up for review an order, same court and Justice, entered December 22, 2004, which granted defendants' motion for leave to amend their answer to assert an affirmative defense of misrepresentation, and for summary judgment on that defense, unanimously affirmed, with costs. Appeal from the December 22, 2004 order unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

The court properly exercised its discretion in permitting defendants to amend their answer to interpose the defense of misrepresentation (see CPLR 3025 [b]; Masterwear Corp. v Bernard, 3 AD3d 305 [2004]), and in granting summary judgment based on that defense (see Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 104 AD2d 258 [1984]). Defendants conclusively established that plaintiff misrepresented a material fact on its application for jewelers block insurance (see Naghavi v New York Life Ins. Co., 260 AD2d 252 [1999]; Aguilar v United States Life Ins. Co. in City of N.Y., 162 AD2d 209 [1990]). Concur—Marlow, J.P., Nardelli, Williams, Sweeny and McGuire, JJ.