South American Exchange v. EPIC Security Corp.

Amended judgment, Supreme Court, New York County (Ira Gammerman, J.), entered April 10, 1996, awarding defendant insurer rescission of the policy it issued to defendant insured, unanimously affirmed, without costs. The trial court properly granted the insurer’s motion to correct the previously entered judgment to provide that the insurer has the right to rescind the subject policy ab initio, in order to conform the judgment to the court’s pronouncements at the time of trial and give full legal effect to its findings (CPLR 5019 [a]; see, Huot v Dworman, 13 Misc 2d 104, 105, affd 8 AD2d 829). While it would have been preferable for the insurer to have sought this relief before the judgment was entered, the court was not precluded from granting this motion some six weeks after service of a copy of the order with notice of entry (see, supra; S. J. E. Bldg. Corp. v Matt O. M. Constr. Co., 265 NY 282), and, contrary to the insured’s assertion, it sustained no prejudice. We also find that the evidence sufficiently established that the insured made material misrepresentations as to its pick-up and delivery schedule, its security 406 measures, and an undisclosed prior loss, warranting rescission of the policy ab initio (see, Matter of Union Indem. Ins. Co., 200 AD2d 99, 107). Concur—Murphy, P. J., Rosenberger, Ellerin, Rubin and Tom, JJ.