April 16, 2015

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

https://www.beynensonlaw.com/case-law/jamaica-dedicated-medical-care-p-c-v-praetorian-ins-co-2015-ny-slip-op50605u/

Court: Appellate Term, Second Department
Decided: April 16, 2015
Citation: 2015 NY Slip Op 50605(U) · 47 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Policy issues

Cite as

Jamaica Dedicated Medical Care. P.C. v Praetorian Ins. Co., 47 Misc 3d 140(A), 2015 NY Slip Op 50605(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 failed to establish fraudulent policy procurement because the insured's residence remained disputed and its report relied on hearsay. The insurer sought summary judgment dismissing the provider's action for assigned no-fault benefits. Although the insured's EUO transcript was admissible, the testimony did not eliminate all material factual issues concerning the insured's actual residence when the policy was procured. The investigative report rested on inadmissible hearsay statements. The insurer therefore failed to make a prima facie showing of fraudulent procurement. The Appellate Term, Second Department, affirmed the denial of the insurer's motion.

Reported in New York Official Reports at 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This opinion is uncorrected and will not be published in the printed Official Reports.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

Cited in this decision

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

American States Ins. Co. v Huff (2014 NY Slip Op 05366) FollowedThe assignor's departure from an EUO before questions about the accident and injuries breached a condition precedent to coverage.

Similar decisions

Jamaica Dedicated Med. Care. P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50606(U))The insurer's summary judgment motion based on fraudulent procurement of the policy was denied, and that denial was affirmed.
Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50756(U))The insurer failed to establish that the assignor materially misrepresented residence to obtain insurance at reduced premiums.
Jamaica Dedicated Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51493(U))The insurer's summary judgment motion on claims denied for EUO nonappearance was granted, and the provider's cross motion was denied.
Jamaica Dedicated Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50752(U))The insurer's affidavit omitted claims in the complaint and failed to substantiate its fee-schedule defense, defeating summary judgment.
Jamaica Wellness Med., P.C. v Hereford Ins. Co. (2018 NY Slip Op 51586(U))The insured's EUO testimony established prima facie that the alleged injury did not arise from an insured incident.