December 11, 2020

Monroe v Omni Indem. Co. (2020 NY Slip Op 51505(U))

https://www.beynensonlaw.com/case-law/monroe-v-omni-indem-co-2020-ny-slip-op-51505u/

Court: Appellate Term, Second Department
Decided: December 11, 2020
Citation: 2020 NY Slip Op 51505(U) · 70 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Policy issues

Cite as

Monroe v Omni Indem. Co., 70 Misc 3d 128(A), 2020 NY Slip Op 51505(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

An insurer relying on rescission under Pennsylvania law need not establish the elements of a separate fraudulent-procurement defense. The provider challenged summary judgment dismissing its assigned no-fault claims based on retroactive rescission of the automobile policy. Following W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., the Appellate Term, Second Department, distinguished proving fraudulent procurement from establishing that the policy had been rescinded in accordance with Pennsylvania law because of fraudulent procurement. It also rejected the provider's argument that the insurer failed to establish an office practice ensuring mailing of the rescission letter. The order denying the provider's motion and granting the insurer's cross motion for summary judgment dismissing the complaint was affirmed.

Reported in New York Official Reports at Monroe v Omni Indem. Co. (2020 NY Slip Op 51505(U))

[*1]

Monroe v Omni Indem. Co.

2020 NY Slip Op 51505(U) [70 Misc 3d 128(A)]

Decided on December 11, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-2253 K C

Harry Keith Monroe, M.D., as Assignee of Eimy, Peguero, Appellant,

against

Omni Indemnity Company, Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered May 23, 2018. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that, upon the application of Pennsylvania law, there was a lack of coverage due to the rescission, ab initio, of the automobile insurance policy at issue.

Contrary to plaintiff’s first argument, defendant was not required to establish the elements of a defense that the policy was fraudulently procured since it advanced a separate and distinct defense—that the policy had been rescinded, in accordance with Pennsylvania law, as a result of fraudulent procurement (see 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]; see also Craigg v Infinity Select Ins. Co., 38 Misc 3d 56 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Plaintiff’s other argument with respect to defendant’s cross motion—that defendant failed to establish a standard office practice or procedure designed to ensure that the rescission letter was mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001])—is also without [*2]merit.

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.

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.
Craigg v Infinity Select Ins. Co. (2013 NY Slip Op 23014)An insurer defending on a completed Florida-law rescission need not prove the underlying misrepresentation.

Similar decisions

Parisien v Omni Indem. Co. (2020 NY Slip Op 50725(U))The insurer established retroactive rescission of the automobile policy under Pennsylvania law, defeating the provider's coverage claim.
Omphil Care, Inc. v Pearl Holding Group Managing Gen. Agent for Ocean Harbor Cas. Ins. Co. (2020 NY Slip Op 50946(U))The insurer established retroactive rescission of a Florida policy through notice and timely return or tender of all premiums.
Remedial Med. Care, P.C. v Infinity Prop. & Cas. Co. (2017 NY Slip Op 50391(U))The insurer established timely rescission of the Pennsylvania policy, and the provider failed to raise a triable issue.
JCC Med., P.C. v Omni Indem. Co. (2021 NY Slip Op 51246(U))The insurer's summary judgment motion based on its nonissuance of a policy covering the accident vehicle was granted on appeal.
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.