Spurt Messenger Service, Inc. v. Gudde

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about April 7, 1994, which, insofar as appealed from, denied defendant-appellant’s cross-motion for summary judgment, unanimously affirmed, without costs.

In light of, inter alia, the fact that defendant failed to satisfactorily establish that it would not have issued the instant policy had it been aware of the applicant’s alleged misrepresentations concerning its use of bicycle messengers, summary judgment was properly denied since there is a question as to whether the alleged misrepresentations were material and thus sufficient to void the instant policy (see, Courtney v Dollar Sav. Bank, 54 AD2d 868, 869). Indeed, defendant insurer failed to provide any evidence of its policy and underwriting practices with respect to applicants whose businesses utilized bicycle messengers (see, Di Pippo v Prudential Ins. Co., 88 AD2d 631). Concur—Rosenberger, J. P., Wallach, Rubin and Mazzarelli, JJ.