August 16, 2019

Maria S. Masigla, P.T. v Omni Indem. Co. (2019 NY Slip Op 51362(U))

https://www.beynensonlaw.com/case-law/maria-s-masigla-p-t-v-omni-indem-co-2019-ny-slip-op-51362u/

Court
Appellate Term, Second Department
Decided
August 16, 2019
Citation
2019 NY Slip Op 51362(U) ยท 64 Misc 3d 147(A)
Posture
Trial
Outcome
Insurer prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Policy issues
Cite as
Maria S. Masigla, P.T. v Omni Indem. Co., 64 Misc 3d 147(A), 2019 NY Slip Op 51362(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 proved that the assignor misrepresented a Pennsylvania address on the policy application while living in Brooklyn. Before the nonjury trial, the parties stipulated that address misrepresentation was the sole and dispositive issue. The record included the assignor's unequivocal testimony that, despite listing Pennsylvania on the application, the assignor had already left that state and lived in Brooklyn. The Appellate Term, Second Department, reversed the provider's judgment and remitted the matter to the Civil Court, Kings County, for entry of judgment dismissing the complaint in the insurer's favor; in light of the stipulation, it reached no other issue.

Reported in New York Official Reports at Maria S. Masigla, P.T. v Omni Indem. Co. (2019 NY Slip Op 51362(U))

[*1]
Maria S. Masigla, P.T. v Omni Indem. Co.
2019 NY Slip Op 51362(U) [64 Misc 3d 147(A)]
Decided on August 16, 2019
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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2018-257 K C

Maria S. Masigla, P.T., as Assignee of Darwin, Ihuoma, Respondent,

against

Omni Indemnity Company, Appellant.


Freiberg, Peck & Kang, LLP (Yilo J. Kang and Nicole McErlean of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Andrew Borrok, J.), entered November 15, 2017. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,332.48.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment which, after a nonjury trial, awarded plaintiff the principal sum of $3,332.48.

Prior to trial, the parties stipulated that the sole and dispositive issue would be whether plaintiff’s assignor had misrepresented her address as being in Pennsylvania, when she in fact lived in Brooklyn, on her application for the insurance policy at issue. Upon a review of the record, we find that defendant established that the assignor did misrepresent her address in obtaining the policy at issue, as the record includes, among other things, the assignor’s unequivocal testimony at the beginning of the trial that, while she put a Pennsylvania address on the policy application, she had left Pennsylvania and lived in Brooklyn at that time.

In light of the parties’ stipulation, we reach no other issue.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 16, 2019

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