September 11, 2012

Cliffside Park Imaging v Preferred Mut. Ins. Co. (2012 NY Slip Op 51754(U))

Headnote

The court considered the residence of the insured and his family as the relevant facts in this case. The main issue decided was whether the insured fraudulently procured insurance coverage by falsely listing a different residence on the insurance application. The court held that the standard for determining residency for insurance coverage requires some degree of permanence and intention to remain, and that the insured's mere intention to reside at a certain premises was not sufficient. The court found that the insured fraudulently listed a different residence on the insurance application, and that the plaintiff, as the assignee standing in the shoes of the insured, failed to raise a triable issue of fact. Therefore, the court reversed the lower court's order denying the defendant's motion for summary judgment and granted the motion, dismissing the complaint.

Reported in New York Official Reports at Cliffside Park Imaging v Preferred Mut. Ins. Co. (2012 NY Slip Op 51754(U))

Cliffside Park Imaging v Preferred Mut. Ins. Co. (2012 NY Slip Op 51754(U)) [*1]

Cliffside Park Imaging v Preferred Mut. Ins. Co.

2012 NY Slip Op 51754(U) [36 Misc 3d 155(A)]

Decided on September 11, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 11, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570470/11.

Cliffside Park Imaging, a/a/o Lisa Ferrato, Plaintiff-Respondent, – –
against
Preferred Mutual Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 14, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 14, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Summary judgment dismissal of plaintiff’s no-fault first-party benefit claim was warranted on the full record developed below. “The standard for determining residency for purposes of insurance coverage requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain” (Vela v Tower Ins. Co. of NY, 83 AD3d 1050, 1051 [2011], quoting Matter of Allstate Ins. Co. [Rapp], 7 AD3d 302, 303 [2004]). The mere intention to reside at certain premises is not sufficient (see Vela v Tower Ins. Co. of NY, 83 AD3d at 1051).

Here, defendant’s moving submission, including the properly considered (see Zalot v Zieba, 81 AD3d 935, 936 [2011], lv denied 17 NY3d 703 [2011]) transcripts of the examinations under oath (“EUO”) of plaintiff’s assignor and her husband, the named insured, established prima facie that the insured fraudulently procured insurance coverage by falsely listing a Pearl River, New York house owned by his father as his residence on the insurance application, when the insured and his wife (the assignor) actually resided, with their infant child, in an apartment in Cliffside Park, New Jersey, an address listed by the couple on their tax returns. In opposition, plaintiff, as assignee “stand[ing] in the shoes” of its assignor (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]), failed to raise a triable issue of fact. Plaintiff’s reliance on a snippet of the insured’s EUO testimony, in which he stated conclusorily that he and his family merely lived “part-time” in the Cliffside Park apartment, was plainly insufficient to defeat summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 11, 2012