November 19, 2015

Gutierrez v Tri State Consumers Ins. Co. (2015 NY Slip Op 51703(U))

https://www.beynensonlaw.com/case-law/gutierrez-v-tri-state-consumers-ins-co-2015-ny-slip-op51703u/

Court: Appellate Term, Second Department
Decided: November 19, 2015
Citation: 2015 NY Slip Op 51703(U)
Posture: Summary judgment
Outcome: Split result
Issues: Policy issues Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Gutierrez v Tri State Consumers Ins. Co., 2015 NY Slip Op 51703(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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.

The insurer proved a misrepresentation in procuring the policy but failed to establish its materiality. The insured assignor misrepresented use of the vehicle in the insurance application. Insufficient evidence of materiality defeated the insurer's request for summary judgment on fraudulent procurement. The provider's motion also failed because it did not establish an untimely denial or a timely denial that was conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion on fraudulent procurement and otherwise affirmed. It remitted for determination of the insurer's alternative fee-schedule ground, which the Civil Court had not addressed.

Reported in New York Official Reports at Gutierrez v Tri State Consumers Ins. Co. (2015 NY Slip Op 51703(U))

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

Jaime G. Gutierrez as Assignee of JULIO CORONEL, Appellant,
against
Tri State Consumers Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 16, 2013. The order denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy.

ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had fraudulently procured the insurance policy by misrepresenting, among other things, whether he would be using the vehicle being insured for work, and on the alternate ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule. By order entered April 16, 2013, the Civil Court denied plaintiff’s motion and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that defendant had established its defense of fraudulent procurement of the insurance policy. The April 16, 2013 order did not pass upon the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the alternate ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

Defendant demonstrated that the assignor, who was also the insured under the insurance policy in question, had misrepresented, among other things, his use of the subject vehicle when he had submitted his application for insurance to defendant. However, defendant failed to submit sufficient evidence to establish that this misrepresentation was material (cf. New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the [*2]complaint due to plaintiff’s assignor’s fraudulent procurement of the insurance policy should have been denied.

Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit inasmuch as plaintiff failed to establish its prima facie case since it did not establish either that defendant had failed to deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 19, 2015

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed its prima facie case because it did not show the insurer failed to deny the claim within 30 days or that a timely denial was conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

New Millennium Psychological Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 52286(U)) Contrasted (cf., but see)The insurer established a material residence misrepresentation that rendered the assignor ineligible for no-fault benefits under the policy.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Gutierrez v Allstate Ins. Co. (2015 NY Slip Op 50799(U))The provider's unopposed summary judgment motion failed because its papers did not establish an untimely or legally deficient denial.
Gutierrez v Farmington Cas. Co. (2015 NY Slip Op 50781(U))The insurer's motion for summary judgment dismissing the complaint was upheld based on timely mailing of IME notices and the denial.
Gutierrez v Elrac, Inc. (2015 NY Slip Op 51215(U))The insurer's cross motion for summary judgment on its IME-nonappearance defense was granted, and the provider's motion was denied.
Gutierrez v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50379(U))The insurer established that its payment for trigger point injections exceeded the amount due under the workers' compensation fee schedule.
Total Family Chiropractic v Mercury Cas. Co. (2010 NY Slip Op 51470(U))The insurer obtained dismissal of a duplicate claim and removal of the notice of trial to pursue its fraudulent-procurement defense.