March 20, 2017

Utopia Equip., Inc. v Infinity Ins. Co. (2017 NY Slip Op 50332(U))

https://www.beynensonlaw.com/case-law/utopia-equip-inc-v-infinity-ins-co-2017-ny-slip-op-50332u/

Court
Appellate Term, First Department
Decided
March 20, 2017
Citation
2017 NY Slip Op 50332(U) · 55 Misc 3d 126(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Policy issues
Cite as
Utopia Equip., Inc. v Infinity Ins. Co., 55 Misc 3d 126(A), 2017 NY Slip Op 50332(U) (App Term, 1st Dept 2017)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

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

An insurer relying on retroactive rescission under Florida law must prove compliance with that law rather than the basis for rescission. The insurer's litigation specialist's affidavit and other evidence established that a rescission notice was sent to the assignor-insured and all premiums were returned within a reasonable time after discovery of the grounds for rescission. The insurer thus established rescission of the Florida policy ab initio and absence of coverage. Following Craigg v Infinity Select Ins. Co., the Appellate Term, First Department, reversed, granted the insurer summary judgment and dismissed the complaint. The provider raised no triable issue, and its additional appellate arguments were unpreserved because they had not been raised below.

Reported in New York Official Reports at Utopia Equip., Inc. v Infinity Ins. Co. (2017 NY Slip Op 50332(U))

[*1]
Utopia Equip., Inc. v Infinity Ins. Co.
2017 NY Slip Op 50332(U) [55 Misc 3d 126(A)]
Decided on March 20, 2017
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 20, 2017

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570581/16
Utopia Equipment, Inc., a/a/o Tyrone Gaime, Plaintiff-Respondent,

against

Infinity Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Carol R. Feinman, J.), entered June 26, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Carol R. Feinman, J.), entered June 26, 2015, reversed, with $10 costs, motion granted and complaint dismissed.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been granted. Defendant established, prima facie, that the underlying Florida automobile insurance policy had been properly rescinded ab initio, in accordance with Florida law, and that there was therefore no coverage available to plaintiff’s assignor. Defendant’s submissions included an affidavit of its litigation specialist and other proof demonstrating that a rescission notice was sent to the assignor-insured and that defendant had returned all premiums paid within a reasonable time after discovery of the grounds for rescinding the policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire & Cas. Co., 675 So 2d 176, 179 [Fla 1996]; see also Hu-Nam-Nam v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U] [App Term, 2d, 11th & 13th Jud Dists 2016]). Contrary to the conclusion reached below, defendant was not required to establish the basis for the retroactive rescission, but rather had the burden of establishing that it complied with the law of the sister state which permits retroactive rescission (see Craigg v Infinity Select Ins. Co., 38 Misc 3d 56, 58 [App Term, 2d, 11th & 13th Jud Dists 2013]).

In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact. We do not reach plaintiff’s present arguments which were not raised below, and are thus unpreserved for appellate review.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur
Decision Date: March 20, 2017

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