Allcity Insurance Company, Appellant, v. Rosalene Adolph, Respondent, et al., Defendants

Allcity Insurance Company, Appellant, v Rosalene Adolph, Respondent, et al., Defendants. [664 NYS2d 548] [MAJORITY] Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about July 31, 1996, which, after a nonjury trial, held that plaintiff insurer is not entitled to rescission of the subject multi-peril insurance policy for a multiple dwelling, unanimously affirmed, with costs. The materiality of a misrepresentation, which must be determined as of the date the policy was issued, “is ordinarily a question of fact, [unless] the evidence of the materiality * * * is clear and substantially uncontradicted” (Interested Underwriters at Lloyd’s v H.D.I. Ill Assocs., 213 AD2d 246, 247). Here, the question of whether the misrepresentation involved was material was appropriately found to be one of fact. The evidence supports the trial court’s factual finding that the misrepresentation herein was not material and we decline to disturb it. Concur—Ellerin, J. P., Rubin, Tom, Mazzarelli and Andrias, JJ.