November 9, 2018

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

Headnote

The case involved a dispute over an insurance claim for first-party no-fault benefits, in which the plaintiff appealed an order granting the defendant's motion for summary judgment dismissing the complaint. The defendant argued that the plaintiff's assignor had made a material misrepresentation regarding his place of residence when procuring the insurance policy in question. The main issue decided was whether the misrepresentation was material, as the insurer would not have issued the policy if it had known the true facts. The court held that the defendant failed to establish as a matter of law that it would not have issued the policy in question if the correct information had been disclosed, and therefore did not demonstrate that the misrepresentation was material. As a result, the court reversed the order and denied the defendant's motion for summary judgment.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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