August 20, 2014

Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. (2014 NY Slip Op 51322(U))

Headnote

The court considered the fact that the plaintiff, Delta Diagnostic Radiology, P.C., was seeking to recover no-fault benefits as an assignee of Jean Brouard. The main issue decided was whether there was fraudulent procurement of the insurance policy in question, as the defendant, National Liability & Fire Insurance Co., alleged that Brouard had misrepresented his place of residence. The court held that there was a triable issue of fact as to whether Brouard had provided a fraudulent address when obtaining the insurance policy, and thus, plaintiff's motion for summary judgment was denied. Additionally, the court found that the defendant failed to make a prima facie showing of entitlement to judgment dismissing the complaint as a matter of law. Therefore, the order was modified to provide that plaintiff's motion for summary judgment was denied.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. (2014 NY Slip Op 51322(U))

Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. (2014 NY Slip Op 51322(U)) [*1]

Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co.

2014 NY Slip Op 51322(U) [44 Misc 3d 142(A)]

Decided on August 20, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 20, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-653 K C

Delta Diagnostic Radiology, P.C. as Assignee of JEAN BROUARD, Respondent,
against
National Liability & Fire Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered November 20, 2012. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary

judgment dismissing the complaint on the ground that plaintiff’s assignor had obtained the insurance policy in question through fraud. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto.

The papers submitted by defendant were sufficient to establish that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) its denial of claim form, which denied the claim on the ground of the fraudulent procurement of the insurance policy in question by virtue of the assignor’s misrepresentation of his place of residence. Furthermore, defendant’s papers demonstrated that a triable issue of fact exists as to whether plaintiff’s assignor had provided a fraudulent address when he had obtained the insurance policy at issue. Consequently, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

With respect to defendant’s cross motion, upon the record before us, we find that defendant failed to make a prima facie showing of its entitlement to judgment dismissing the complaint as a matter of law.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 20, 2014