[U] Burdick V. American Modern Home Insurance Co‪.‬

Plaintiff Paul Burdick took a loan against his 401K plan and purchased an ATV, but was told that he needed a valid driver's license to obtain insurance. His license was then under suspension for failure to pay some tickets. Some months after the purchase, on April 5, 2002, his mother, Plaintiff Rebecca Burdick, procured the policy at issue in this matter, covering the ATV. She filled out an application for insurance in her name, nowhere on it indicating that her son Paul had an interest in the ATV or that he regularly operated it. The application indicated that a policy would only be written for the titled owner of the ATV. On August 10, 2003, the ATV was reported stolen and the Burdicks made a claim under the policy. On October 2, 2003, the carrier took a recorded statement from Paul Burdick concerning the purchase, ownership, and use of the ATV. On April 14, 2004, the carrier took examinations under oath of Rebecca Burdick and Paul Burdick. On June 28, 2004, the carrier denied the claim, alleging that 1) Rebecca Burdick had engaged in fraud, 2) Ms. Burdick made material misrepresentations in the application for coverage, thus subjecting the policy to cancellation. On or about the same date the carrier issued and mailed a check to Ms. Burdick for the entire premiums paid since inception. In the instant motion the Defendant has properly dropped the fraud allegation (there is no indication or claim of fraud related to the occurrence, and it is to such fraud the provision cited refers) but argues that the policy is void ab initio because of material misrepresentations in the application (See Taradena v. Nationwide Mut. Ins. Co. 239 AD2d 876, 659 NYS2d 646 [4 Dept.,1997]), that Rebecca Burdick has no insurable interest in the ATV, and that Paul Burdick is not in privity with Defendant and therefore has no cognizable cause of action. Plaintiffs cross-move for summary judgment on their behalf, alleging that the carrier's disclaimer is untimely and that it is therefore estopped from disclaiming, and that the termination was not consistent with policy provisions.