July 29, 2009

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

https://www.beynensonlaw.com/case-law/alexander-alperovich-m-d-p-c-v-auto-one-ins-co-2009-ny-slip-op51721u/

Court: Appellate Term, Second Department
Decided: July 29, 2009
Citation: 2009 NY Slip Op 51721(U) · 24 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues

Cite as

Alexander Alperovich, M.D., P.C. v Auto One Ins. Co., 24 Misc 3d 141(A), 2009 NY Slip Op 51721(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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's identity-theft defense failed because it showed no assignor involvement or awareness and had not canceled the policy before the accident. The provider sought summary judgment for assigned no-fault benefits, but the Civil Court found factual questions concerning whether the assignor was an innocent third party to the fraud used to obtain the policy. The record contained no evidence of the assignor's participation in or knowledge of that scheme. Applying Vehicle and Traffic Law § 313, the Appellate Term, Second Department, reversed, granted the provider's motion, and remitted for calculation of statutory interest and assessment of attorney's fees under Insurance Law § 5106 (a).

Reported in New York Official Reports at 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This opinion is uncorrected and will not be published in the printed Official Reports.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

Cited in this decision

A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co. (2006 NY Slip Op 26118)An insurer may assert the insured's fraudulent policy procurement against a provider assignee despite the 30-day preclusion rule.
D.A.V. Chiropractic, P.C. v GEICO Indem. Co. (2008 NY Slip Op 52304(U))The insurer's fraudulent-procurement defense failed because it showed neither preaccident cancellation nor the assignors' participation in fraud.

Cited by

A label shows how the later decision treated this one.

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 50402(U)) FollowedThe insurer failed to connect the passenger assignor to alleged policy fraud or establish that the injuries arose outside an insured incident.

Similar decisions

Quality Psychological Servs., P.C. v Auto One Ins. Co. (2011 NY Slip Op 52281(U))The insurer's IME nonappearance defense was precluded because its affidavit failed to establish timely mailing of the denial.
Central Radiology Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 50948(U))The insurer established that the assignor misrepresented the state of residence and was ineligible for no-fault benefits under the policy.
Great Health Care Chiropractic, P.C. v Hanover Ins. Co. (2014 NY Slip Op 50359(U))The insurer's fraudulent-procurement defense was precluded because it failed to establish a timely denial on that ground.
B.Y., M.D., P.C. v Motor Veh. Acc. Indem. Corp. (2011 NY Slip Op 50984(U))Providers aware of the vehicle owner's identity must exhaust remedies against that owner before seeking no-fault benefits from MVAIC. The providers and their assignor knew the identity of the owner of the vehicle alleged to have struck the assignor, but the providers did not demonstrate exhaustion.
New Millennium Psychological Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 52286(U))The insurer established a material residence misrepresentation that rendered the assignor ineligible for no-fault benefits under the policy.