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Allstate Insurance Co. v. Kaywattie11/25/2002
uld not have searched the record and dismissed the action as premature, without prejudice. As the plaintiff argues, the action did not merely seek a declaration as to its liabilities to the owners with respect to Bissoon's claim. Rather, it sought a declaration as to all claims growing out of the aforementioned fire, including the owners' counterclaim for lost rental income, as well as a declaration that the relevant insurance policy was void ab initio. Thus, it is factually distinguishable from the cases of Allstate Ins. Co. v. Hertz Corp. (119 AD2d 612) and Terry v. Farmers Ins. Co. of Arizona (236 AD2d 829) relied on by the Supreme Court. In any event, the issue of prematurity was not the subject of the motion and cross motion, and the Supreme Court should not have reached this issue (cf. Dunham v. Hilco Constr. Co., 89 NY2d 425, 429-430).
However, contrary to the plaintiff's contention, that branch of its motion for summary judgment which was for a judgment declaring that the subject insurance policy was void ab initio was properly denied. Its sole proof that material misrepresentations were made which, if known, would have resulted in a denial of coverage, was the conclusory statement of its claims representative. As that statement was not supported by any internal underwriting documentation or the relevant portions of its underwriting manual, it was insufficient as a matter of law to support the granting of its motion (see Alaz Sportswear v. Public Serv. Mut. Ins. Co., 195 AD2d 357, 358; cf. Estate of Threatt v. American Centurion Life Assur. Co., 251 AD2d 284; Mehta v New York Life Ins. Co., 203 AD2d 8; see generally Alvarez v. Prospect Hosp., 68 NY2d 320).
In light of this determination, we need not reach the parties' remaining contentions.
FLORIO, J.P., FRIEDMANN, ADAMS and CRANE, JJ., concur.
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