Empire State Medical Supplies, Inc., v. Sentry Insurance, Slip Copy, 55 Misc.3d 130(A), 2017 WL 1224977 (Table), 2017 N.Y. Slip Op. 50403(U)
In support of its cross motion, defendant submitted the affidavit of its senior claims examiner which failed to establish that defendant had timely denied plaintiff’s claims (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; Gutierrez v United Servs. Auto. Assn., 47 Misc 3d 152[A], 2015 NY Slip Op 50797[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, defendant failed to demonstrate that it was not precluded from asserting the insured’s alleged misrepresentations in connection with the issuance of the *2 policy. Consequently, defendant failed to establish its prima facie entitlement to summary judgment dismissing the complaint.
This case suggests that misrepresentation is a precludable defense