December 11, 2020

Modern Acupuncture, P.C. v Omni Ins. Co. (2020 NY Slip Op 51506(U))

https://www.beynensonlaw.com/case-law/modern-acupuncture-p-c-v-omni-ins-co-2020-ny-slip-op-51506u/

Court: Appellate Term, Second Department
Decided: December 11, 2020
Citation: 2020 NY Slip Op 51506(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Policy issues

Cite as

Modern Acupuncture, P.C. v Omni Ins. Co., 2020 NY Slip Op 51506(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 compliance with South Carolina law permitting retroactive rescission of its automobile policy. The insurer sought summary judgment dismissing the provider's claim for injuries sustained in a New York collision, alleging that the insured assignor procured a South Carolina policy through misrepresentations. The Appellate Term, Second Department, affirmed denial of the insurer's motion. Although South Carolina permits rescission ab initio in certain circumstances, an insurer relying on an out-of-state rescission must prove compliance with that state's law. The motion papers did not establish compliance with South Carolina Code Annotated § 38-75-730 (b). The applicability of South Carolina law was uncontested on appeal.

Reported in New York Official Reports at Modern Acupuncture, P.C. v Omni Ins. Co. (2020 NY Slip Op 51506(U))

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

Modern Acupuncture, P.C., as Assignee of Vilma Alvarenga, Respondent,
against
Omni Insurance Company, Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Lisa Grey, J.), entered September 20, 2018. 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 for injuries the assignor sustained in a motor vehicle accident in New York on June 5, 2015, defendant moved for summary judgment dismissing the complaint on the ground that the South Carolina automobile insurance policy was fraudulently procured by the assignor, who is also the insured, based on alleged misrepresentations which she had made on her application for insurance. By order entered September 20, 2018, the Civil Court, applying the substantive law of South Carolina (see Portfolio Recovery Assoc., LLC v King, 14 NY3d 410 [2010]), denied defendant’s motion. We note that no issue is raised on appeal regarding the applicability of South Carolina law.

South Carolina allows an insurance company to rescind an automobile insurance policy ab initio under certain circumstances (see Strickland v Prudential Ins. Co., 278 SC 82, 86-87, 292 SE2d 301, 304 [1982]). In order for an insurance company to be entitled to summary judgment dismissing the complaint based on a rescission, ab initio, of the policy issued in a sister state, the insurance company “has the burden of establishing that it complied with the law of the [*2]sister state which permits retroactive rescission” (Delta Diagnostic Radiology, P.C. v Infinity Group, 49 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see Parisien v Omni Indem. Co., 67 Misc 3d 141[A], 2020 NY Slip Op 50725[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Craigg v Infinity Select Ins. Co., 38 Misc 3d 56 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Upon a review of the record, we find that the papers defendant submitted in support of its motion for summary judgment dismissing the complaint failed to establish its prima facie entitlement to judgment as a matter of law, as it did not show that defendant had complied with the requirements of South Carolina Code Annotated § 38-75-730 (b).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 11, 2020

Cited in this decision

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

Delta Diagnostic Radiology, P.C. v Infinity Group (2015 NY Slip Op 25304) FollowedThe insurer established valid retroactive rescission under Pennsylvania law by sending notice and returning premiums within 60 days of policy issuance.
Parisien v Omni Indem. Co. (2020 NY Slip Op 50725(U)) FollowedThe insurer established retroactive rescission of the automobile policy under Pennsylvania law, defeating the provider's coverage claim.
Craigg v Infinity Select Ins. Co. (2013 NY Slip Op 23014) FollowedAn insurer defending on a completed Florida-law rescission need not prove the underlying misrepresentation.
W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co. (2012 NY Slip Op 22142) FollowedUnder Florida law, failure to follow statutory cancellation procedures does not preclude rescission for a material application misrepresentation.

Similar decisions

Charles Deng Acupuncture, P.C. v Omni Indem. Co. (2019 NY Slip Op 50291(U))The defendant insurer established that it had not issued the policy covering the accident and that the provider sued the wrong carrier.
Monroe v Omni Indem. Co. (2020 NY Slip Op 50731(U))The insurer established retroactive policy rescission under Pennsylvania law through proof of mailing the rescission letter and refund check.
NR Acupuncture, P.C. v Ocean Harbor Cas. Ins. Co. (2019 NY Slip Op 51892(U))The insurer failed to establish valid Florida policy rescission or that a Florida declaratory judgment bound the provider.
Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 50402(U))The insurer failed to connect the passenger assignor to alleged policy fraud or establish that the injuries arose outside an insured incident.
Blackman Pelham Med., P.C. v Ocean Harbor Cas. Ins. Co. (2021 NY Slip Op 51257(U))The insurer proved valid retroactive rescission of the Florida policy by sending notice and timely returning all premiums.