Monroe v Omni Indem. Co. (2020 NY Slip Op 51505(U))

Reported in New York Official Reports at Monroe v Omni Indem. Co. (2020 NY Slip Op 51505(U))

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered May 23, 2018. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that, upon the application of Pennsylvania law, there was a lack of coverage due to the rescission, ab initio, of the automobile insurance policy at issue.

Contrary to plaintiff’s first argument, defendant was not required to establish the elements of a defense that the policy was fraudulently procured since it advanced a separate and distinct defense—that the policy had been rescinded, in accordance with Pennsylvania law, as a result of fraudulent procurement (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co.,36 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see also Craigg v Infinity Select Ins. Co., 38 Misc 3d 56 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Plaintiff’s other argument with respect to defendant’s cross motion—that defendant failed to establish a standard office practice or procedure designed to ensure that the rescission letter was mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001])—is also without [*2]merit.

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.