The following papers read on this motion: Notice of Motion and Affidavits X Affirmation in Opposition N/A Reply Affirmation N/A Relief Requested Motion by the plaintiff for an order pursuant to CPLR 3212 granting summary judgment in its favor. The defendant submits opposition. The plaintiff submits a reply affirmation. Background The plaintiff initiated this action seeking a judgment declaring that defendant Henry Daley misrepresented his residence address in order to reduce his insurance premiums, and that it is not obligated to insure him for injuries sustained in an October 10, 2017 motor vehicle accident due to alleged material misrepresentations in procuring the subject insurance policy. Applicable Law To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy (Piller v. Otsego Mut. Fire Ins. Co., 164 A.D.3d 534, quoting Joseph v. Interboro Ins. Co., 144 A.D.3d 1105). A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented (Piller, supra, quoting Interboro Ins. Co. v. Fatmir, 89 A.D.3d 993). To establish materiality as a matter of law, the insurer must present evidence showing that it would not have issued the same policy if the correct information had been disclosed in the application (see Piller, supra, citing Morales v. Castlepoint Ins. Co., 125 A.D.3d 947). To obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212[b]), and he must do so by tender of evidentiary proof in admissible form” (Zuckerman v. City of New York, 49 N.Y.2d 557, citing Friends of Animals v. Associated Fur Manufacturers, 46 N.Y.2d 1065). Once the movant for summary judgment has met his or her burden, it is incumbent upon the party opposing said motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which warrant a trial (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320; CPLR 3212[b]). An attorney’s affirmation alone is insufficient to defeat a motion for summary judgment (see Zuckerman, supra). The failure to submit an affidavit of a person who has personal knowledge of the facts is detrimental (S. J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338). Conclusory allegations, bold assertions, or speculation are simply insufficient to successfully oppose a motion for summary judgment (Zuckerman, supra; Rotuba Extruders v. Ceppos, 46 N.Y.2d 223). A shadowy semblance of an issue is not enough to defeat a motion for summary judgment (Lobreglio v. Marks, 105 A.D.2d 621). Discussion In support of its motion, the plaintiff submits, inter alia, the police accident report for Mr. Daley’s accident, the transcript of Mr. Daley’s examination under oath, and the affidavit of Carolyn Upshaw-Ellis, claims specialist for plaintiff. Ms. Upshaw-Ellis avers that plaintiff conducted an investigation which revealed Mr. Daley’s vehicle was regularly seen in Kings County and was never seen in Columbia County, where he claimed to reside. Plaintiff notes that Mr. Daley’s driver’s license and vehicle’s registration each list a Kings County address. Ms. Upshaw-Ellis further states that, based on plaintiff’s practices in assessing insurance policies, Mr. Daley’s policy would have cost $4,051.22 more with a Kings County residence than the policy it issued based on the Columbia County address. With its submissions, the plaintiff has demonstrated that Mr. Daley made misrepresentations in his insurance application and that it would not have issued the subject policy had he disclosed his Kings County residence because policies for vehicles in Kings County are calculated differently than those in Columbia County (see Interboro Ins. Co., supra; see also Piller, supra; see also Zuckerman, supra). In opposition, the defendant fails to raise an issue of fact (see Alvarez, supra; see also Interboro Ins. Co., supra; see also Piller, supra). Of note, Mr. Daley declined to offer an affidavit contesting the findings of plaintiff’s investigation. Further, the argument that more discovery will help defendant oppose the motion is unavailing. The mere hope that somehow a party will uncover evidence that will prove a defense provides no basis pursuant to CPLR 3212(f) for postponing a determination of a summary judgment motion (see Plotkin v. Franklin, 179 A.D.2d 746). Conclusion In light of the foregoing, it is hereby ORDERED that the plaintiff’s motion is granted, and it is further ORDERED that the plaintiff is directed to Settle Judgment on Notice. A copy of this order with notice of entry shall accompany the proposed judgment. Dated: February 7, 2020
