Longobardi v. New York Merchant Bakers Mutual Fire Insurance

—In an action to recover insurance proceeds pursuant to a commercial lines insurance policy, (1) the defendant appeals from so much of an order of the Supreme Court, Kings County (I. Aronin, J.), dated March 22, 1996, as denied that branch of its motion which was for summary judgment dismissing the complaint, and (2) the plaintiff cross-appeals from so much of the same order as granted that branch of the defendant’s motion which was to amend its answer to include the affirmative defense of material misrepresentation. 388 Ordered that the order is affirmed, without costs or disbursements. The plaintiffs motion papers raised triable issues of fact as to whether the defendant sent its notice of cancellation to the plaintiffs "authorized agent” as required by Insurance Law § 3426 (c) (see, Kamyr, Inc. v St. Paul Surplus Lines Ins. Co., 152 AD2d 62; D&L Dept. Stores v J.A.M. Assocs., 180 AD2d 422). Additionally, the plaintiff has raised triable issues of fact as to whether the false reference in her application that her building was equipped with a so-called "ansul system” constituted grounds for cancelling the insurance policy under Insurance Law § 3426. Finally, the Supreme Court properly permitted the defendant to amend its answer to include the affirmative defense of material misrepresentation. At trial it will be determined whether the defendant waived its right to assert such a defense (see, Truscelli v Fireman’s Fund Ins. Cos., 137 AD2d 806; Powers Chemco v Federal Ins. Co., 122 AD2d 203, 204). Miller, J. P., Sullivan, Santucci and Joy, JJ., concur.