Ellis v. Republic Insurance , 118 A.D.2d 411 ( 1986 )

—Order, Supreme Court, New York County (William P. McCooe, J.), entered on or about June 20, 1985, denying plaintiff’s motion for leave to reargue and renew defendant Republic’s motion for summary judgment dismissing the complaint, which motion had been granted by order entered February 19, 1985, unanimously reversed, on the law, without costs or disbursements, the motion granted and upon renewal defendant Republic’s motion for summary judgment denied without prejudice to a renewal thereof upon completion of discovery. Appeal from the order of the same court and Justice, entered February 19, 1985, dismissed, without costs or disbursements, as superseded.

In this action to recover under a fire policy, the insurer has raised the defense of material misrepresentation based on several glaring false statements contained in the insurance application. The loss occurred only six days after coverage had been purportedly bound. Review of the record reveals the existence of issues of fact as to the defendant agency’s relationship with the insurer and its authority to bind and, most significantly, the source of the false information. Thus, summary judgment should have been denied. We note, however, that the record is factually sparse and the issues noted may well be clarified after depositions have been taken. Thus, our denial of the motion is without prejudice to a renewal upon completion of discovery. Concur — Sandler, J. P., Sullivan, Fein, Kassal and Rosenberger, JJ.