June 29, 2018
Maxford, Inc. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51057(U))
https://www.beynensonlaw.com/case-law/maxford-inc-v-erie-ins-co-of-n-y-2018-ny-slip-op-51057u/
- Decided
- June 29, 2018
- Citation
- 2018 NY Slip Op 51057(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
- Legal questions
- Effect of insurer's declaratory judgment (see the maps)
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.
Reported in New York Official Reports at Maxford, Inc. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51057(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Erie Insurance Company of New York, Appellant.
Robyn M. Brilliant, P.C. (Robyn M. Brilliant and Barry Montrose of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 9, 2016. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and, upon, in effect, denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, in effect, denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, and found, in effect pursuant to CPLR 3212 (g), that plaintiff had established that it had mailed the bill to defendant, that the bill was unpaid, and that defendant had timely denied the claim. The court limited the issues for trial to defendant’s basis for denying the claim, to wit, that plaintiff’s assignor had fraudulently procured the insurance policy by materially misrepresenting her address to obtain a lower insurance premium. Defendant appeals from so much of the order entered March 9, 2016 as denied defendant’s cross motion for summary judgment dismissing the complaint and made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.
On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court findings, in effect pursuant to CPLR 3212 (g), in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
Defendant cross-moved on the ground that plaintiff’s assignor had fraudulently procured the insurance policy in question by making a material misrepresentation on her policy application as to her place of residence and the principal location for the garaging of the vehicle which was to be insured. Upon a review of the record, we find that defendant failed to establish as a matter [*2]of law ” ‘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], quoting Schirmer v Penkert, 41 AD3d 688, 691 [2007]; see Renelique v National Liab. & Fire Ins. Co., 53 Misc 3d 147[A], 2016 NY Slip Op 51615[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).
Defendant further asserts that plaintiff is collaterally estopped from maintaining the present action by virtue of an order, rendered on default, by the Civil Court, Queens County (Richard G. Latin, J.), in an action against plaintiff’s assignor, finding that the assignor had made “material and/or fraudulent misrepresentations” on her application for the insurance policy. However, the doctrine of collateral estoppel is not applicable here, as plaintiff was not named in the Civil Court, Queens County, action, and, thus, plaintiff was not in privity with the assignor (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 486-487 [1979]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67, 69 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). In view of the foregoing, we reach no other issue.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., WESTON and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 29, 2018
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Does an insurer’s no-coverage declaratory judgment, or pending declaratory action, bar or stay a no-fault claimant’s action?
This decision: No preclusion because the claimant (or insurer) was not a party or privy to the DJ (rules on the question, but another ground decided the case)
Rejected collateral estoppel based on a default order, in the insurer's action against the assignor, finding material misrepresentations in the policy application, because the provider was not named in that action and was not in privity with the assignor.
Of the 164 decisions on this question in the Second Department courts and the Court of Appeals, 20 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U)) FollowedThe insurer's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them.
- Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51615(U)) FollowedThe insurer failed to establish that the assignor's misrepresentation of residence in procuring the policy was material as a matter of law.
- Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 20130)The provider was not collaterally estopped by default declaratory judgments in actions where it was neither a party nor in privity.
Cited by
A label shows how the later decision treated this one.
- Active Care Med. Supply Corp. v MVAIC (2019 NY Slip Op 52045(U)) FollowedMVAIC's IME nonappearance and outstanding-verification defenses were precluded by its failure to timely deny or request verification.
- Westchester Radiology & Imaging, P.C. v Global Liberty Ins. Co. of N.Y. (2021 NY Slip Op 50641(U)) FollowedThe rule against successive summary judgment motions does not apply when the court did not consider the insurer's initial cross motion.
Similar decisions
- Maxford, Inc. v Utica Mut. Ins. Co. (2017 NY Slip Op 51756(U))The insurer established that its denial was issued within 30 days after receipt of the bills, and the provider did not rebut that showing.
- Golden Star Acupuncture, P.C. v Erie Ins. Co. of NY (2019 NY Slip Op 50920(U))The insurer failed to prove EUO nonappearance, and the provider failed to establish entitlement to summary judgment on the appealed claims.
- K.O. Med., P.C. v Mercury Cas. Co. (2017 NY Slip Op 51614(U))A default declaratory judgment denying no-fault coverage barred the provider's action under res judicata.
- Maxford, Inc. v Country Wide Ins. Co. (2018 NY Slip Op 50941(U))The insurer raised a factual issue whether it timely and properly denied the claim based on the assignor's alleged intoxication.
- Longevity Med. Supply, Inc. v 21st Century Ins. Co. (2019 NY Slip Op 52041(U))The insurer's uncertified police report failed to establish the out-of-state contacts asserted for forum non conveniens dismissal.