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463 SADDLE UP TREMONT LLC v. UNION MUT. FIRE INS. CO.

Index No. 32188/19E. Appeal No. 15947. Case No. 2021-02313.

205 A.D.3d 511 (2022)

166 N.Y.S.3d 520

2022 NY Slip Op 03203

463 Saddle Up Tremont LLC, Respondent, v. Union Mutual Fire Insurance Company, Appellant, and Schaefer Enterprises, Inc., et al., Respondents.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 17, 2022.

Attorney(s) appearing for the Case

Hurwitz & Fine, P.C., Buffalo ( Agnieszka A. Wilewicz of counsel), for appellant.

Law Office of Craig A. Blumberg, New York ( Craig A. Blumberg of counsel), for 463 Saddle Up Tremont LLC, respondent.

L'Abbate, Balkan, Colavita & Contini, L.L.P., Melville ( William T. McCaffery of counsel), for Schaefer Enterprises, Inc., respondent.

Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola ( Sandra J. LePorin of counsel), for Papa Restaurant Corp., respondent.

Concur—Mazzarelli, J.P., Oing, Moulton, González, Kennedy, JJ.

The court correctly denied Union Mutual's motion for summary judgment with leave to renew upon the completion of discovery. Union Mutual failed to establish, as a matter of law, either that the insured made false statements in its insurance application or that the alleged misrepresentations were material (see Kiss Constr. NY, Inc. v Rutgers Cas. Ins. Co., 61 A.D.3d 412, 413 [1st Dept 2009]). The affidavit relied upon by Union Mutual...

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