Nevius v. Preferred Mutual Insurance

—Judgment unanimously affirmed without costs. Memorandum: Plaintiff commenced this action following defendants’ rejection of the fire loss claim he submitted under his homeowner’s insurance policy. Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint based upon the third affirmative defense, alleging that plaintiff made material misrepresentations on the application for insurance. Defendants failed to meet their burden of establishing the materiality of the misrepresentations “sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212 [b]; see, Cutrone v American Gen. Life Ins. Co., 199 AD2d 1032, 1033). Defendants also failed to meet their burden of proof at trial with respect to that affirmative defense. Defendants failed to demonstrate that knowledge of the facts misrepresented by plaintiff would have led them to reject the application (see, Insurance Law § 3105 [b]; Campese v National Grange Mut. Ins. Co., 259 AD2d 957, 958). Defendants also failed to meet their burden of proof at trial with respect to the first affirmative defense, alleging that the loss resulted from an act committed by or at the direction of plaintiff. “To prevail on [their] claim that [plaintiff! intentionally caused or procured the setting of the fire, [defendants were] required to demonstrate, by clear and convincing evidence, that [plaintiff] committed the acts in question” (Chenango Mut. Ins. Co. v Charles, 235 AD2d 667, 668). Defendants failed to present clear and convincing evidence demonstrating either that the fire was intentionally set or that plaintiff had a financial motive to destroy his property for the insurance proceeds. Thus, the court properly granted judgment to plaintiff. (Appeal from Judgment of Supreme Court, Lewis County, Parker, J. — Contract.) Present — Pigott, Jr., P. J., Green, Hayes, Scudder and Kehoe, JJ.