July 29, 2009

Alexander Alperovich, M.D., P.C. v Auto One Ins. Co. (2009 NY Slip Op 51721(U))

Headnote

The court considered the issue of whether a medical provider was entitled to recover assigned first-party no-fault benefits from an insurance company. The main issue decided was whether the insurance policy was obtained fraudulently as a result of identity theft, and whether the medical provider's assignor was aware or involved in the fraudulent scheme. The court held that there was no evidence that the assignor participated in or was aware of the fraudulent scheme, and since the insurance company did not cancel the policy prior to the accident, they failed to demonstrate the existence of an issue of fact to defeat the medical provider's motion for summary judgment. The holding of the case was that the lower court's denial of the provider's motion for summary judgment was reversed, and the matter was remitted for the calculation of interest and assessment of attorney's fees.

Reported in New York Official Reports at Alexander Alperovich, M.D., P.C. v Auto One Ins. Co. (2009 NY Slip Op 51721(U))

Alexander Alperovich, M.D., P.C. v Auto One Ins. Co. (2009 NY Slip Op 51721(U)) [*1]

Alexander Alperovich, M.D., P.C. v Auto One Ins. Co.

2009 NY Slip Op 51721(U) [24 Misc 3d 141(A)]

Decided on July 29, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-1028 K C.

Alexander Alperovich, M.D., P.C. a/a/o IVAN POPOV, Appellant,
against
Auto One Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered February 28, 2008. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment, holding that there are questions of fact as to whether plaintiff’s assignor is an innocent third party or was involved in, or had knowledge of, the identity theft which resulted in defendant’s issuance of the automobile insurance policy. The instant appeal by plaintiff ensued.

While defendant contends that plaintiff is not entitled to summary judgment because the insurance policy was obtained fraudulently as a result of identity theft, the record is bereft of any evidence that plaintiff’s assignor participated in or was aware of such a fraudulent scheme (cf. A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Since defendant did not cancel the insurance policy prior to the accident (see Vehicle and Traffic Law § 313), defendant failed to demonstrate the existence of an issue of fact so as to defeat plaintiff’s motion for summary judgment (see Matter of Metlife Auto & Home v Agudelo, 8 AD3d 571 [2004]; D.A.V. Chiropractic, P.C. v GEICO Indem. Co., 21 Misc 3d 138[A], 2008 NY Slip Op 52304[U] [App Term, 9th & 10th Jud Dists 2008]; cf. A.B. Med. Servs. PLLC, 12 Misc 3d 8). Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory [*2]interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 29, 2009