FILED: QUEENS COUNTY CLERK 01/12/ :50 PM INDEX NO /2015 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 01/12/2017

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1 FILED: UEENS COUNTY CLERK 01/12/ :50 PM INDEX NO /2015 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 01/12/2017 SUPREME COURT OF THE STTE OF NEW YORK COUNTY OF UEENS BLHR THNDI, - against - OTSEGO MUTUL FIRE INSURNCE COMPNY, Plaintiff, Index No /2015 FFIRMTION IN OPPOSITION TO PLINTIFF S MOTION ND IN SUPPORT OF DEFENDNT S CROSS-MOTION Defendant. Kenneth R. Feit, an attorney admitted to practice before the Courts of this State, affirms the truth of the following statements under penalty of perjury and pursuant to CPLR I am counsel to Tell, Cheser & Breitbart, am the attorney for defendant Otsego Mutual Fire Insurance Company ( Otsego ) in this action, and am familiar with the prior proceedings. 2. Otsego submits this affirmation, the affidavit of Terry M. Gras and a memorandum of law in opposition to Plaintiff s summary judgment motion, and in support of this cross-motion for summary judgment pursuant to CPLR 3212 dismissing the complaint, rescinding Otsego insurance policy number HO issued to Plaintiff Balhar Thandi, and declaring the policy void ab initio because of Plaintiff s material misrepresentations in his application for insurance. 3. s appears from the complaint, which is Exhibit D to Plaintiff s motion, Plaintiff brings this action in connection with an pril 15, 2015 fire at a house at 1 of 20

2 th Street, Floral Park, New York. The Complaint alleges that Otsego breached policy number HO by refusing to pay Plaintiff for his fire damage, and demands damages in the amount of $266, copy of Otsego s answer is Exhibit E to Plaintiff s motion. Otsego admits that it issued policy number HO to Plaintiff, but demands judgment dismissing the complaint because of Plaintiff s material misrepresentations in his application for the policy. Otsego s second affirmative defense and counterclaim demands judgment rescinding policy number HO and declaring it void ab initio. 5. This motion demonstrates that Plaintiff made the following material misrepresentations in his application (Exhibit to Plaintiff s motion and Exhibit 10 to this cross-motion) for Otsego policy number HO for the house at th Street in Floral Park: () (B) (C) (D) (E) Plaintiff answered No to the application s uestion 4 -- ny other residences owned, occupied or rented? -- although the true answer was Plaintiff answered No to the application s uestion Is building undergoing renovation or reconstruction? -- although the true answer was Plaintiff represented in the application that the occupancy of the Floral Park house was by Owner, although Plaintiff actually occupied a different New Hyde Park house and intended to rent the Floral Park house to a tenant. Plaintiff represented in the application that the usage of the Floral Park house was Primary, although New Hyde Park house was actually Plaintiff s primary residence. Plaintiff represented in the application that the Floral Park house was occupied daily although it was actually unoccupied of 20

3 6. These misrepresentations deprived Otsego of the ability to apply its underwriting standards, judgment and experience to Plaintiff s application for insurance, and misled Otsego into issuing a policy that it might have otherwise declined to issue. The Gras affidavit demonstrates that if Plaintiff s application had been truthful, Otsego could not have issued policy number HO to Plaintiff. Instead, a truthful application would have compelled Otsego to make further inquiries to determine whether the Floral Park house actually qualified for coverage. Depending on the results of the inquiry, Otsego might have responded to the application by restricting coverage or by an outright refusal to issue a policy. Because Plaintiff s misrepresentations induced action that Otsego might otherwise not have taken, under established New York law there is no genuine disputed issue as to the materiality of the false representations. Proof of any one material misrepresentation justifies judgment dismissing the complaint, rescinding the policy, and declaring it void ab initio. 7. The Court should be aware at the outset of the falsity of the major premise of Plaintiff s motion, that he purchased the house at th Street in Floral Park with the intention that it would be his primary residence. Plaintiff s supporting affidavit includes the following at the end of paragraph 4: The closing for the subject premises took place on March 26, It was my intent to move into the home after the purchase and to utilize it as my primary residence. In paragraph 5 of his affidavit Plaintiff stated that on March 25, 2015 he went to the Grima gency and met with Natalia Varghese. In paragraph 6 of the affidavit Plaintiff stated: t the time I had explained to Ms. Varghese of 20

4 that this was going to be my primary residence and that my wife and I would move in at some point after the closing. 8. The deposition testimony of non-party witness William Waiksnis demonstrates that Plaintiff s intent was to rent the Floral Park house to a tenant, and to move into the house only after the passage of several years. The testimony also demonstrates that Plaintiff formed his intention to renovate the Floral Park house at a point prior to March 25, Exhibit 1 to this cross-motion is the transcript of the ugust 8, 2016 deposition, which Mr. Waiksnis signed on page 58. Mr. Waiksnis was a real estate broker with Coach Realtors. Ex. 1, Waiksnis dep., pp Mr. Waiksnis testified: Do you remember meeting Mr. Thandi for the first time? Did you have a conversation with him? Yes, I met him at a public open house that I was having. For this house, this house at th Street? That s correct, yes. Do you recall the substance of your conversation with Mr. Thandi? He mentioned to me that he was looking to purchase a house for himself in the future. In other words, he wanted to purchase a home where he would, at some future point, move in himself. In the interim, he was thinking about renting it. Do you remember having that conversation with him the first time you met him at the open house? Did he ever repeat that to you at any point after the open house? of 20

5 Yes, yes. Okay. He said he wasn t sure whether he wants to move in right away. He wanted to renovate the house. He said he s thinking about renting it, maybe moving in upon his retirement from his current job. Somewhere in the future, two or three years down the road. Ex. 1, Waiksnis dep., pp Did you and Mr. Thandi ever discuss renting the house at th Street? Yes, yes, we did. When did you first have a conversation about renting the house? Prior to his entering into a contract of sale, at some point between when he first saw the house and before he signed the actual contract. Did you have any subsequent conversations about renting the house at th Street? Yes, just casually speaking with him. Ex. 1, Waiksnis dep., pp Now, did Mr. Thandi ever discuss with you making renovations in the house at th Street? Yes, he did When did you first have a conversation on the subject of renovations? I think it was prior to his actually signing a formal contract. He spoke about potential -- we had a discussion about potential, you know, by -- he mentioned he probably wanted to put a bath on the second floor and make some renovations on the first floor, finish the basement or redo the basement. Yes, we had those types of discussions of 20

6 Now, to your knowledge, would Mr. Thandi need a permit to put a bathroom on the second floor? Yes, we discussed that. MR. BLUMBERG: Objection. -- I advised him that he would need a permit, yes. nd he knew it. Ex. 1, Waiksnis dep., pp Exhibit 2 to this cross-motion is the transcript of the May 23, 2016 deposition of Plaintiff Balhar Thandi. Exhibit 3 to this cross-motion is a copy of my June 8, 2016 letter transmitting the original and a copy of the May 23, 2016 transcript of Plaintiff s deposition to his attorney for execution and return. The signed transcript has not been returned to me within sixty days of its June 8, 2016 transmittal, or at any subsequent point. Therefore, under CPLR 3116(a), the transcript may be used as fully as though signed. 10. Plaintiff identified the real estate broker who showed him the house at th Street in Floral Park as Bill of Coach and noted that Bill lives across the street from the house at th Street. Ex. 2, Thandi dep., pp Plaintiff s May 23, 2016 deposition demonstrates that from around 2011, if not earlier, to the date of the deposition, he resided in his New Hyde Park house. During this period Plaintiff did nothing to sell the New Hyde Park house and to transfer his household from that house to the Floral Park house. Consequently, his No answer to the application s uestion 4 -- ny other residences owned, occupied or rented? -- was false. Plaintiff testified: State your address for the record, please of 20

7 Ex. 2, Thandi dep., p Washington venue, New Hyde Park, New York Did you ever list your house at 1300 Washington venue for sale with any real estate broker or anyone else? I did list it back five, six years ago, I think. round 2011? I think so. I m not sure exactly. One time I did, yes. * * * nd you didn t sell the house? I change my mind. My kids don t want to move. They want to finish education in same schools. fter that, did you ever list it? No. Did you ever advertise it anywhere, the sale? No. Did you ever discuss selling it with any friends or co-workers who you thought might be interested in buying it? I don t recall. You don t recall or you didn t? I don t recall. I don t remember. Ex. 2, Thandi dep., pp of 20

8 Referring you to Exhibit C 1 again, Mr. Thandi, the application. When you put your signature on Exhibit C, you owned your house at 1300 Washington venue? Ex. 2, Thandi dep., p. 83. When, if at all, did you ever occupy th Street? MR. BLUMBERG: Objection to form. How are you defining occupy? Did you ever at any time up until today ever live at th Street? No. Ex. 2, Thandi dep., p. 50. Did you at any point notify any banks or any other companies or institutions with whom you did business to change your address from 1300 Washington venue in New Hide Park to th Street? No. In March of 2015, were you registered to vote? In Nassau County? Did you ever change your registration from Nassau to ueens County? No. * * * Did you ever take any steps to have your mail forwarded from 1300 Washington venue in New Hide Park to th Street? 1 Deposition Exhibit C is Exabit to Plaintiff s motion and Exhibit 10 to this cross-motion of 20

9 No. Ex. 2, Thandi dep., pp What did you do? fter the closing, I don t do anything until right before we move like two weeks after the closing. Then I started painting the house and started cleaning up to move in. Did you buy materials at that time? fter the closing? Then I started the work. What materials did you buy? Paint. nything else? No. Did you hire anyone to do any work? Yes, I did. Who did you hire? The guy s name is mric. The second guy s name is Taljeet. Ex. 2, Thandi dep., p. 37. m I correct to understand that after the work -- withdrawn. What was your plan with relation to the work mric and Taljeet were doing; what did you plan to do after they finished? Move in, start bringing stuff slowly to my new house, and move in. Meaning move yourself, wife, and children? of 20

10 Did you intend to move all of your property from the house in New Hide Park? Slowly, slowly. To the house at th Street? So the house at 1300 Washington venue would eventually be empty of the all of the furniture? How long did you expect that to take? couple weeks to move slowly. I was working. I wasn t taking a day off. There would be a period where you owned two houses; is that right? You can say that. Well it would be true, wouldn t it? Because you would have to find a buyer for 1300 Washington venue? You didn t have a buyer for it, did you? No. * * * ccording to your plan wouldn t it be necessary -- withdrawn. ccording to your plan, you would have to find a buyer, correct? of 20

11 nd then you and the buyer would have to enter into a contract of sale, correct? Everybody does. Then there would have to be a closing? In your plan, how long would all of that take -- weeks, months, or longer? MR. BLUMBERG: Objection to form. Do you know? THE WITNESS: No. I don t know how long it takes. Ex. 2, Thandi dep., pp In light of the preceding testimony, it is evident that Plaintiff s No answer to uestion 4 -- ny other residences owned, occupied or rented? -- was false and that the accurate answer was Plaintiff s representations that the Floral Park house was occupied by Owner, that the usage of the Floral Park house was Primary, and that it was occupied daily were also false. 13. Plaintiff testified that he hired acquaintances mric and Taljeet put new tile in a bathroom, to remove paneling and to paint in the Floral Park house. Ex. 2, Thandi dep., p On the day of the fire, mric and Taljeet were fixing a water line. Ex. 2, Thandi dep., pp Plaintiff also had mric and Taljeet replace a toilet, and connect the toilet to the domestic water and the drain. Ex. 2, Thandi dep., pp Plaintiff paid mric and Taljeet $5.100 for the work and owed them $1,400. Ex. 2, Thandi dep., p of 20

12 14. Plaintiff was questioned about his application for insurance, marked Deposition Exhibit C, which is Exhibit to Plaintiff s motion and Exhibit 10 to Otsego s cross-motion. Plaintiff testified: I m going to hand you what the reporter marked Exhibit C for identification. I m going to ask you to look at it, and then I m going to ask you some questions about it. If you want more time, you can take more time. Take a look at the second page of Exhibit C, and tell me if you recognize any of the signatures on that page? My signature (indicating). Is that you are signature at the lower left of the second page? Is it in the box where it says applicant s signature? Where were you when you signed that document? The office. The Grima Office? * * * Did you read any of it before you signed? No. Not any part of it? No. Ex. 2, Thandi dep., pp of 20

13 15. Plaintiff is bound by his signature on the application, whether he read it or not. Nonetheless the testimony of non-party witness Natalia Varghese demonstrates that the answers in the application were Plaintiff s answers. Ms. Varghese testified in connection with this action on September 14, The transcript of the Varghese deposition is Exhibit G to Plaintiff s motion. Ms. Varghese was an employee of the Grima gency on the date of the deposition and had been so employed for about four years. Ex. G, Varghese dep., p. 8. She met with Plaintiff Balhar Thandi and generated an application. Ex. G, Varghese dep., p. 8. Ms. Varghese s testimony shows that Plaintiff described the house for which he sought insurance as his primary residence: Were you contacted by Mr. Thandi at some point? He was a walk-in. * * * Do you remember what he told you or what he was asking for? He said he needed insurance for a new purchase. * * * In discussing this with Mr. Thandi when he first walked in, did you have any idea as to what company you might use to insure that property? Not before speaking with him, but after speaking with him, yes. What was it about what he told you that influenced your decision as to what company to use? He said it was his primary residence and he gave me the address. I took a look at the property and it seemed to be a good fit with Otsego. Ex. G, Varghese dep., pp of 20

14 insurance with Otsego: 16. Ms. Varghese s explained the process of preparing an application for You decide at that point that Otsego would be a good fit; is that right? Based upon that information, you then sat down to prepare a quote; is that right? Correct. t what point in the process is the quote generated? t the end once he answers all the questions. Did you sit down with him and go through the questions on the application portal? I did. Ex. G, Varghese dep., p. 53. For Otsego, is there a procedure that you use for the application process? What is that procedure? We go ahead and we fill out the application that is provided through the portal. When you say the application that is provided through the portal, do you actually pull up a form application on the computer? No. It s software so there are questions and you either enter in an answer or you put a checkmark and then at the end of the process there is an application that is generated. re you familiar with the term CORD form application? of 20

15 The application that would be generated through the Otsego portal, does that printout in an CORD application? There are various questions on your computer that you would either answer or check off and that would transpose onto the CORD form application? Correct.. Would it be your procedure to printout the application? Then what do you do with the application? Then we have the client sign the application. Ex. G, Varghese dep., pp Regardless of this question, how it s phrased, you re telling me that as a general procedure, you will ask an insured whether they intend on doing renovations? Correct. Ex. G, Varghese dep., p. 44. Do you recall specifically asking Mr. Thandi whether the building was undergoing renovation or reconstruction? I don t recall specifically that day asking. I don t recall much of our conversation, to be honest, but it is our procedure to ask every underwriting question and answer accordingly. Ex. G, Varghese dep., p. 62. When you printout an application for a prospective Otsego insured and the prospective insured is present in your office, do you have a practice or procedure? of 20

16 We ask the client to review the application. Okay. If they would like to take it, then they can go ahead and sign. Ex. G, Varghese dep., p. 88. t the time you completed this application, you were aware that the insured was not living at the insured property; correct? Correct. Is it fair to say that you understood he was living somewhere else? That s fair. Did you ask the insured where he was living at that time? I don t believe so. Is there a reason why you didn t ask him where he was living at that time? I suppose because we were taking out primary insurance under the pretense that he was going to be living at the new property. Did you ask him whether he owned another piece of property at the time you completed this application? I did. Did he tell you he didn t? He must have because we checked off no on the application. Was it your normal procedure to just mark the box no when somebody is buying a house that they intend on living in? Normal procedure is to ask the questions and mark what the client answers. Ex. G, Varghese dep., pp of 20

17 17. Otsego s June 1, 2016 letter denying his claim and declaring policy number HO void ab initio is attached to Plaintiff s motion as Exhibit C. (Ex. B, Thandi dep., p. 66.) Plaintiff acknowledged his receipt and negotiation of Otsego s check refunding his premium for the voided policy. Ex. B, Thandi dep., pp Mr. Gras explains in paragraphs 30 and 31 of his affidavit that when an agency employee using Otsego s online system enters a Yes answer to uestion 4 -- ny other residences owned, occupied or rented -- or a Yes answer to uestion Is building undergoing renovation or reconstruction? -- the following appears on the employee s computer screen: Please enter an explanation for your selection. t the same time a field opens on the computer screen for the agency employee to enter the explanation. See Exhibits 15 and 16. When uestion 4 is answered Yes, the absence of an explanation prevents the agency employee from binding coverage. Because uestions 4 and 19 were falsely answered No, an explanation was neither requested nor provided. It is thus evident that Plaintiff s false answers thwarted Otsego from obtaining critical underwriting information that affected Otsego s decision to issue a policy that it might have declined to issue had Plaintiff answered uestions 4 and 19 with an accurate 19. Plaintiff s misrepresentations thwarted Mr. Gras or another Otsego underwriter from considering the information that the explanation for your selection may have elicited which may have, in the exercise of underwriting judgment and discretion, led the underwriter to reject the application outright or to consider the Floral Park house to be the equivalent of a secondary home, so that the underwriter was further thwarted from conditioning the issuance of a policy to Plaintiff on the inclusion of Form ML-347, the of 20

18 Capped Mold Remediation Endorsement, and on limiting coverage to specified perils and actual cash value instead of all risks and replacement cost, as was the case with the policy issued to Plaintiff. 20. The false No answer thwarted Mr. Gras or another Otsego underwriter from adhering to the practices demonstrated by Exhibits 17 through 27 2 in which applicants answered uestion 4 with a Yes and, except in the two instances in which Otsego did not remain on the risk and the one instance in which the policy was not a homeowner policy, the policies issued and renewed in reliance on such applications included Form ML-347, the Capped Mold Remediation Endorsement, and in all but one instance were issued on a stated perils basis as indicated by the use of Form ML-1 or Form ML-2. See Gras ffidavit, 48. Such evidence of Otsego s treatment of similar risks is admissible under Insurance Law 3105(c). 21. The testimony of William Waiksnis about a conversation in which Plaintiff described his plans to renovate the Floral Park house (Ex. 1, Waiksnis dep., pp ) quoted above in paragraph 8, and the testimony of Natalia Varghese in which she described asking Plaintiff if he intended to make renovations to the house (Ex. G, Varghese dep., p. 62.) quoted above in paragraph 14 demonstrate that Plaintiff was aware when he 2 Exhibits 17 through 27 were produced in connection with a separate action, Friedman v. Otsego Mut. Fire Ins. Co., Supreme Court, Nassau County, Index No. 4948/2014. These exhibits were produced and redacted pursuant to the stipulation dated October 29, 2015, a copy of which is submitted herewith as Exhibit 4. My transmittal letter dated November 20, 2015, a copy of which is submitted herewith as Exhibit 5, describes the documents produced pursuant to the stipulation. Pursuant to order dated December 1, 2016, a copy of which is submitted herewith as Exhibit 6, Justice Randy Sue Marber granted summary judgment to Otsego for reasons relevant to the motion and cross-motion in this action of 20

19 executed the application (Exhibit 10) of the importance of information. ll of this is further proof that his false No answer to uestion Is building undergoing renovation or reconstruction? -- was material. No insured may be permitted to consciously allow an application to contain misleading or incorrect information. 22. Plaintiff argues that Otsego waived or is estopped from rescinding the policy by not acting almost instantaneously upon receipt of information that Plaintiff s Floral Park house was unoccupied and undergoing renovation. Otsego was not required to act precipitously, before obtaining an explanation and satisfying itself that the facts were indeed as they appeared to be. Mr. Gras explains in paragraphs 24 and 25 of his affidavit, and Exhibits 12 and 13 demonstrate, that independent contractor Karen Lottridge inspected the house on pril 7, 2015, that Otsego received her inspection report on pril 13, 2015, and that underwriter Kathy Burke prepared and faxed an inquiry to the Grima gency on pril 15, 2015, the date of the fire. Six weeks later, by letter dated June 1, 2015, Otsego denied liability and declared policy number HO void ab initio. The substance of the June 1, 2015 letter demonstrates that when Otsego voided the policy it was fully apprised of the relevant facts. See Exhibit 14. Plaintiff cannot show that he was prejudiced because the policy was voided on June 1, 2015 and would not have been prejudiced if the policy had been voided at an earlier point. Plaintiff s assertions of waiver and estoppel are groundless and should be rejected. 23. The papers submitted in support of this motion establish beyond any possibility of dispute and as a matter of law that Plaintiff s misrepresentations deprived Otsego of its freedom of choice and induced action that it might otherwise not have taken of 20

20 Under the well-settled New York authorities cited in Otsego s memorandum of law, Plaintiff s misrepresentations were therefore material as a matter of law and compel summary judgment in favor of Otsego. 24. Wherefore, I respectfully request that Plaintiff s motion be denied, that Otsego s cross-motion be granted in its entirety, and that Otsego be granted summary judgment dismissing the complaint, rescinding Otsego insurance policy number HO , and declaring the policy void ab initio. Dated: Garden City, New York January 12, 2017 Kenneth R. Feit of 20

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