May 18, 2018

Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co. (2018 NY Slip Op 50741(U))

https://www.beynensonlaw.com/case-law/liliya-veksler-lcsw-p-c-v-ameriprise-ins-co-2018-ny-slip-op50741u/

Court: Appellate Term, Second Department
Decided: May 18, 2018
Citation: 2018 NY Slip Op 50741(U) · 59 Misc 3d 145(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Policy issues

Cite as

Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co., 59 Misc 3d 145(A), 2018 NY Slip Op 50741(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 show that the assignor's residence misrepresentation was material to issuance of the policy. The provider appealed from summary judgment dismissing its assigned no-fault claims on that defense. Under Interboro Ins. Co. v Fatmir, materiality requires underwriting documentation, such as manuals, bulletins or rules concerning similar risks, showing that the insurer would not have issued the same policy had accurate information been disclosed. The record did not establish that the insurer would have declined to issue the policy. The Appellate Term, Second Department, reversed the order and denied the insurer's motion.

Reported in New York Official Reports at Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co. (2018 NY Slip Op 50741(U))

[*1]

Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co.

2018 NY Slip Op 50741(U) [59 Misc 3d 145(A)]

Decided on May 18, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1448 K C

Liliya Veksler, LCSW, P.C., as Assignee of Carlos Canela, Appellant,
against
Ameriprise Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 11, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint upon the ground that plaintiff’s assignor had procured the insurance policy in question by making a material misrepresentation as to his place of residence.

“A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented. To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011] [internal [*2]quotation marks and citations omitted]).

Upon a review of the record, we find that defendant failed to establish as a matter of law that it would not have issued the policy in question. Consequently, defendant did not demonstrate that the misrepresentation by plaintiff’s assignor was material.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 18, 2018

Cited by

A label shows how the later decision treated this one.

All Healthy Style Med., P.C. v Ameriprise Ins. Co. (2018 NY Slip Op 51650(U)) FollowedThe insurer's summary judgment motion based on an alleged material misrepresentation of the assignor's residence was denied on appeal.
All Healthy Style Med., P.C. v Ameriprise Ins. Co. (2018 NY Slip Op 51651(U)) FollowedThe insurer's summary judgment motion based on an alleged material misrepresentation of the assignor's residence was denied on appeal.

Similar decisions

Serge Chiropractic Servs., P.C. v Ameriprise Ins. Co. (2018 NY Slip Op 50742(U))The insurer's motion for summary judgment based on material misrepresentation of the assignor's residence was denied on appeal.
All Healthy Style Med., P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51592(U))The insurer failed to establish that the assignor's residence misrepresentation was material to issuance of the policy.
Commitment Care, P.T., P.C. v Travelers Home & Mar. Ins. Co. (2019 NY Slip Op 51157(U))An insurer must document its underwriting practices to establish that an application misrepresentation was material as a matter of law.
Alignment Chiropractic, P.C. v Travelers Home & Mar. Ins. Co. (2020 NY Slip Op 50994(U))An insurer must document its underwriting practices to establish that an application misrepresentation was material as a matter of law.
Concord Direct, Inc. v Ameriprise Ins. Co. (2022 NY Slip Op 51272(U))The insurer failed to establish a material misrepresentation concerning a covered vehicle's garaging or a covered driver's address.