December 16, 2011

New Millennium Psychological Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 52286(U))

https://www.beynensonlaw.com/case-law/new-millennium-psychological-servs-p-c-v-commerce-ins-co-2011-ny-slip-op52286u/

Court: Appellate Term, Second Department
Decided: December 16, 2011
Citation: 2011 NY Slip Op 52286(U) · 34 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 1 later decision (see Cited by)
Issues: Policy issues

Cite as

New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127(A), 2011 NY Slip Op 52286(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 established a material residence misrepresentation that rendered the assignor ineligible for no-fault benefits under the policy. The insurer obtained summary judgment dismissing the provider's assigned-benefits action for fraudulent procurement of the policy. On appeal, the provider challenged only the admissibility of the insurer's proof. The affidavits and investigative reports sufficiently established that the insured assignor misrepresented the state of residence. The misrepresentation was material because the insurer was not licensed to insure vehicles in New York at the time of the loss and would not have issued the policy had it known the assignor resided there. The provider, standing in the assignor's shoes, offered no sufficient opposing evidence. The Appellate Term, Second Department, affirmed the judgment.

Reported in New York Official Reports at New Millennium Psychological Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 52286(U))

[*1]

New Millennium Psychological Servs., P.C. v Commerce Ins. Co.

2011 NY Slip Op 52286(U) [34 Misc 3d 127(A)]

Decided on December 16, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2010-2229 Q C.

New Millennium Psychological Services, P.C. as Assignee of NICOLAS DIAZ, Appellant,
against
Commerce Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 29, 2010, deemed from a judgment of the same court entered August 11, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 29, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy by virtue of the assignor misrepresenting his state of residence in connection with the issuance of the insurance policy in question. The Civil Court granted defendant’s motion for summary judgment and dismissed the complaint. This appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The sole argument raised on appeal is whether defendant proffered admissible evidence of a fraudulently procured insurance policy. Upon our review of the record, we find that the affidavits and investigative reports annexed to defendant’s motion papers sufficiently established that the assignor, who was also the insured under the subject insurance policy, had misrepresented his state of residence. Furthermore, the evidence submitted by defendant established that this misrepresentation was material since defendant would not have issued the policy had it known that the assignor resided in the State of New York, as defendant was not licensed to insure vehicles in New York at the time of this loss, and would not have issued the subject policy to him. Thus, the assignor was ineligible to receive first-party no-fault benefits under the insurance policy in question (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; Central Radiology Servs., P.C. v Commerce Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50948[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). In opposition, plaintiff, as assignee standing in the shoes of its assignor (see New York & Presbyt. [*2]Hosp. v Country Wide Ins. Co., NY3d , 2011 NY Slip Op 07149 [2011]), failed to submit any evidence sufficient to defeat defendant’s motion for summary judgment. Accordingly, the judgment is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: December 16, 2011

Cited in this decision

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

Central Radiology Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 50948(U)) FollowedThe insurer established that the assignor misrepresented the state of residence and was ineligible for no-fault benefits under the policy.
A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co. (2006 NY Slip Op 26118) FollowedAn insurer may assert the insured's fraudulent policy procurement against a provider assignee despite the 30-day preclusion rule.
New York & Presbyt. Hosp. v Country-Wide Ins. Co. (2011 NY Slip Op 07149) FollowedA timely proof of claim does not satisfy the 30-day accident-notice requirement when submitted after that period expires.

Cited by

A label shows how the later decision treated this one.

Gutierrez v Tri State Consumers Ins. Co. (2015 NY Slip Op 51703(U)) Contrasted (cf., but see)The insurer proved a misrepresentation in procuring the policy but failed to establish its materiality.
W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co. (2012 NY Slip Op 22142)Under Florida law, failure to follow statutory cancellation procedures does not preclude rescission for a material application misrepresentation.
Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50756(U))The insurer failed to establish that the assignor materially misrepresented residence to obtain insurance at reduced premiums.
Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50254(U))The insurer raised a factual issue over fraudulent policy procurement but failed to establish material misrepresentation as a matter of law.
Chiropractic Exam Works, P.C. v Sentry Cas. Co. (2021 NY Slip Op 51125(U))An insurer that repudiates liability for a claim cannot then require compliance with the policy's EUO provision.

Similar decisions

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.
Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))The insurer established the assignor's IME nonappearance and defeated the provider's challenge to the duplicate denial requirement.
All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co. (2011 NY Slip Op 50949(U))The insurer's affidavits established timely mailing of IME requests and denials and the assignor's failure to attend the IMEs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint.
Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))The insurer established timely and proper mailing of IME notices and the assignor's nonappearance, without a triable rebuttal.
Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50762(U))The provider established its prima facie case, and the insurer failed to prove timely mailing of denials needed to avoid preclusion.