November 9, 2018

All Healthy Style Med., P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51592(U))

https://www.beynensonlaw.com/case-law/all-healthy-style-med-p-c-v-21st-century-ins-co-2018-ny-slip-op51592u/

Court: Appellate Term, Second Department
Decided: November 9, 2018
Citation: 2018 NY Slip Op 51592(U) · 61 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Policy issues

Cite as

All Healthy Style Med., P.C. v 21st Century Ins. Co., 61 Misc 3d 139(A), 2018 NY Slip Op 51592(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to establish that the assignor's residence misrepresentation was material to issuance of the policy. The insurer obtained summary judgment dismissing the provider's assigned no-fault claims on the ground that the policy had been procured through a material misrepresentation. Under Interboro Ins. Co. v Fatmir, materiality requires underwriting documentation showing that the insurer would not have issued the same policy had the correct information been disclosed. The record did not establish that the insurer would not have issued the policy in question. The Appellate Term, Second Department, reversed the order and denied the insurer's summary judgment motion.

Reported in New York Official Reports at All Healthy Style Med., P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51592(U))

[*1]

All Healthy Style Med., P.C. v 21st Century Ins. Co.

2018 NY Slip Op 51592(U) [61 Misc 3d 139(A)]

Decided on November 9, 2018

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 9, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-194 K C

All Healthy Style Medical, P.C., Also Known as All Heathy Style, P.C., as Assignee of Mario Milord, Appellant,
against
21st Century Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (Mikhail Kopelevich of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Elke E. Mirabella of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered December 7, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint upon the ground that plaintiff’s assignor had procured the insurance policy in question by making a material misrepresentation as to his place of residence.

“A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented. To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011] [internal quotation marks and citations omitted]).

Upon a review of the record, we find that defendant failed to establish as a matter of law that it would not have issued the policy in question. Consequently, defendant did not [*2]demonstrate, prima facie, that the misrepresentation by plaintiff’s assignor was material.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018

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