November 1, 2016

Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51615(U))

https://www.beynensonlaw.com/case-law/renelique-v-national-liab-fire-ins-co-2016-ny-slip-op51615u/

Court: Appellate Term, Second Department
Decided: November 1, 2016
Citation: 2016 NY Slip Op 51615(U) · 53 Misc 3d 147(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

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)

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 that the assignor's misrepresentation of residence in procuring the policy was material as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claim, applying Interboro Ins. Co. v Fatmir. The denial of the provider's summary judgment motion remained in place. The provider's supporting affidavit failed to establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit as a matter of law. Neither party established entitlement to summary judgment.

Reported in New York Official Reports at Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51615(U))

[*1]

Renelique v National Liab. & Fire Ins. Co.

2016 NY Slip Op 51615(U) [53 Misc 3d 147(A)]

Decided on November 1, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-25 Q C

Pierre Jean Jacques Renelique, as Assignee of EDWITCH DENIS, Appellant,
against
National Liability & Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered December 4, 2013. 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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.

Defendant’s cross motion was based upon the ground that plaintiff’s assignor had procured the insurance policy in question by making a material misrepresentation as to his place of residence. As plaintiff argues, defendant failed to establish as a matter of law that the misrepresentation by plaintiff’s assignor was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2011]). Consequently, defendant’s cross motion should have been denied.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 01, 2016

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's affidavit failed to establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit, so its prima facie case failed.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Cited by

A label shows how the later decision treated this one.

Maxford, Inc. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51057(U)) FollowedThe insurer failed to establish that it would not have issued the same policy had accurate residence and garaging information been disclosed.

Similar decisions

Renelique v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50868(U))The insurer's affidavit established timely and proper mailing of the denial based on the assignor's IME nonappearance.
Renelique v Allstate Ins. Co. (2016 NY Slip Op 51357(U))The insurer's affidavits failed to establish an office mailing procedure ensuring timely mailing of its denial of claim.
Renelique v American Tr. Ins. Co. (2016 NY Slip Op 51495(U))The insurer's cross motion for summary judgment based on outstanding verification was denied on appeal.
Renelique v Tri State Consumers Ins. Co. (2016 NY Slip Op 51536(U))The insurer's summary judgment motion based on outstanding verification was denied on appeal.
Renelique v Travelers Ins. Co. (2016 NY Slip Op 50911(U))The provider's affidavit raised a factual issue as to whether the insurer received requested verification and the action was premature.