April 16, 2015

Jamaica Dedicated Medical Care. P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50605(U))

Headnote

The court considered the defendant's motion for summary judgment to dismiss the complaint by the plaintiff, a medical care provider, seeking to recover first-party no-fault benefits. The defendant argued that the insured had fraudulently procured the insurance policy. The main issue was whether the defendant had provided sufficient evidence to establish entitlement to judgment as a matter of law. The court held that the defendant did not submit enough evidence to support its motion, as the insured's testimony at an examination under oath did not eliminate all material issues of fact regarding his actual residence at the time he procured the policy, and the investigative report submitted by the defendant was based on inadmissible hearsay. As a result, the court affirmed the order denying the defendant's motion for summary judgment.

Reported in New York Official Reports at Jamaica Dedicated Medical Care. P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50605(U))

Jamaica Dedicated Medical Care. P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50605(U)) [*1]

Jamaica Dedicated Med. Care. P.C. v Praetorian Ins. Co.

2015 NY Slip Op 50605(U) [47 Misc 3d 140(A)]

Decided on April 16, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1345 K C Jamaica Dedicated Medical Care. P.C. as Assignee of LALBACHAN SOOKLALL, Respondent,

against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered January 24, 2013. The order denied 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 plaintiff’s assignor, the insured, had fraudulently procured the insurance policy. By order entered January 24, 2013, the Civil Court denied defendant’s motion due to defendant’s failure to annex to its motion papers a copy of the original insurance policy.

The Civil Court properly denied defendant’s motion, since defendant did not submit sufficient evidence in support of its motion to establish its entitlement to judgment as a matter of law. While the transcript of the insured’s testimony at an examination under oath (EUO) was admissible (see American States Ins. Co. v Huff, 119 AD3d 478 [2014]), the insured’s EUO testimony failed to eliminate all material issues of fact as to his actual residence at the time he procured the policy (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Furthermore, the investigative report submitted by defendant in support of its motion was based upon statements that constituted inadmissible hearsay (see Petrillo v Town of Hempstead, 85 AD3d 996 [2011]; Saunders v 551 Galaxy Realty Corp., 64 AD3d 564 [2009]). Consequently, as defendant failed to make a prima facie showing that the insured had fraudulently procured the insurance policy, defendant’s motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order is affirmed.

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

Decision Date: April 16, 2015