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December 22, 2021

Blackman Pelham Med., P.C. v Ocean Harbor Cas. Ins. Co. (2021 NY Slip Op 51257(U))

https://www.beynensonlaw.com/case-law/blackman-pelham-med-p-c-v-ocean-harbor-cas-ins-co-2021-ny-slip-op51257u/

Court
Appellate Term, Second Department
Decided
December 22, 2021
Citation
2021 NY Slip Op 51257(U)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Policy issues
Cite as
Blackman Pelham Med., P.C. v Ocean Harbor Cas. Ins. Co., 2021 NY Slip Op 51257(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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 valid retroactive rescission of the Florida policy by sending notice and timely returning all premiums. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned-benefits action. Florida law governed the coverage issue despite the provider's argument that New York's prohibition on retroactive rescission controlled. Under Fla Stat Ann § 627.728 (5), the insurer showed notice to the policyholder and return of all premiums within a reasonable time after discovering grounds for rescission. It was not required to demonstrate the basis for rescission on this motion. The provider raised no triable issue.

Reported in New York Official Reports at Blackman Pelham Med., P.C. v Ocean Harbor Cas. Ins. Co. (2021 NY Slip Op 51257(U))

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

Blackman Pelham Medical, P.C., as Assignee of Sunil Bicano, Appellant,

against

Ocean Harbor Casualty Insurance Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Gallo, Vitucci & Klar, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered March 10, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that, pursuant to Florida law, there was a lack of coverage due to the valid rescission, ab initio, of the Florida automobile insurance policy in question. According to an affidavit submitted by an employee of defendant’s managing general agent, an investigation conducted after the accident revealed that, at the time the policy was renewed, about three weeks before the accident, the policyholder, who is also the assignor, did not reside, or garage the vehicle, in Florida. Plaintiff opposed the motion. By order entered March 10, 2020, the Civil Court granted the motion. On appeal, plaintiff contends that New York law, which does not permit retroactive rescission, controls and, in any event, that defendant failed to demonstrate that the insurance policy had been properly rescinded in accordance with Florida law.

Upon a review of the record, we find that the Civil Court properly applied Florida law to the substantive issue involved herein (see Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; Auten v Auten, 308 NY 155, 160-161 [1954]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 60 [2000]). In order to demonstrate that an [*2]automobile insurance policy has been properly rescinded ab initio in accordance with Florida law, an insurer must demonstrate that it gave notice of the rescission to the policyholder and that it returned, or tendered, all paid premiums within a reasonable time after the discovery of the grounds for avoiding the policy (see Fla Stat Ann § 627.728 [5]; Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). Contrary to plaintiff’s arguments, in the case at bar, defendant was not required to demonstrate the basis for the retroactive rescission in support of its motion for summary judgment (see Craigg v Infinity Select Ins. Co., 38 Misc 3d 56, 58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

As defendant’s motion papers demonstrated that a rescission notice was sent to the policyholder, and that defendant had returned all premiums paid to the policyholder within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant established, prima facie, that it had voided the policy ab initio pursuant to Florida law (see Omphil Care, Inc. v Pearl Holding Group Managing Gen. Agent for Ocean Harbor Cas. Ins. Co., 68 Misc 3d 129[A], 2020 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire and Cas. Co., 675 So 2d at 179). Plaintiff failed to raise a triable issue of fact in opposition to the motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2021

Cited in this decision

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

  • Craigg v Infinity Select Ins. Co. (2013 NY Slip Op 23014) FollowedAn insurer defending on a completed Florida-law rescission need not prove the underlying misrepresentation.
  • Omphil Care, Inc. v Pearl Holding Group Managing Gen. Agent for Ocean Harbor Cas. Ins. Co. (2020 NY Slip Op 50946(U)) FollowedThe insurer established retroactive rescission of a Florida policy through notice and timely return or tender of all premiums.
  • W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co. (2012 NY Slip Op 22142) FollowedUnder Florida law, failure to follow statutory cancellation procedures does not preclude rescission for a material application misrepresentation.

Similar decisions

  • NR Acupuncture, P.C. v Ocean Harbor Cas. Ins. Co. (2019 NY Slip Op 51892(U))The insurer failed to establish valid Florida policy rescission or that a Florida declaratory judgment bound the provider.
  • T & S Med. Supply Corp. v Ocean Harbor Cas. Ins. Co. (2018 NY Slip Op 50665(U))The insurer failed to prove mailing of the rescission notice and premium refund needed to establish rescission of its Florida policy.
  • Compas Med., P.C. v Infinity Group (2016 NY Slip Op 50042(U))The insurer established valid retroactive rescission under Florida law, and the provider failed to raise a triable issue.
  • Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co. (2017 NY Slip Op 50029(U))The insurer failed to establish valid Florida policy rescission because it did not prove notice or timely return or tender of premiums.
  • Universal Health Chiropractic, P.C. v Infinity Prop. & Cas. Co. (2014 NY Slip Op 50350(U))The insurer established a valid retroactive rescission of the assignor's Florida automobile policy for material misrepresentations.
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