January 24, 2018

Utopia Equip. Inc. v Ocean Harbor Cas. Ins. Co. (2018 NY Slip Op 50080(U))

https://www.beynensonlaw.com/case-law/utopia-equip-inc-v-ocean-harbor-cas-ins-co-2018-ny-slip-op50080u/

Court: Appellate Term, First Department
Decided: January 24, 2018
Citation: 2018 NY Slip Op 50080(U) · 58 Misc 3d 149(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Policy issues

Cite as

Utopia Equip. Inc. v Ocean Harbor Cas. Ins. Co., 58 Misc 3d 149(A), 2018 NY Slip Op 50080(U) (App Term, 1st Dept 2018)

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The insurer established that its Florida policy had been validly rescinded retroactively, leaving no coverage for the assignor. Its claims manager's affidavit and supporting proof showed that a rescission notice was sent and premiums were tendered back within a reasonable time after discovery of the grounds for rescission. Following Utopia Equip., Inc. v Infinity Ins. Co., the insurer had to establish compliance with Florida law permitting retroactive rescission, rather than establish the basis for rescission. The provider raised no triable issue as to validity. The Appellate Term, First Department, reversed the order, insofar as appealed from, which had adhered on renewal to denial of summary judgment, and granted the insurer's motion dismissing the complaint.

Reported in New York Official Reports at Utopia Equip. Inc. v Ocean Harbor Cas. Ins. Co. (2018 NY Slip Op 50080(U))

[*1]

Utopia Equip. Inc. v Ocean Harbor Cas. Ins. Co.

2018 NY Slip Op 50080(U) [58 Misc 3d 149(A)]

Decided on January 24, 2018

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2018

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Ling-Cohan, Gonzalez, JJ.
570688/17

Utopia Equipment Inc. a/a/o Ericka Thornton, Plaintiff-Respondent, –
against
Ocean Harbor Casualty Insurance Co., Defendant-Appellant.

Defendant appeals from that portion of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated May 9, 2017, which, upon renewal, adhered to a prior order denying its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), dated May 9, 2017, insofar as appealed from, reversed, with $10 costs, defendant’s motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been granted. Defendant established, prima facie, that the underlying Florida automobile insurance policy had been properly rescinded ab initio, in accordance with Florida Law, and that there was therefore no coverage available to plaintiff’s assignor. Defendant’s submissions included an affidavit of its claims manager and other proof demonstrating that a rescission notice was sent to the assignor-insured and that defendant had tendered a check for premiums paid within a reasonable time after discovery of the grounds for rescinding the policy (see Utopia Equip., Inc. v Infinity Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op 50332[U] [App Term, 1st Dept 2017]; Hu-Nam-Nam v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Defendant was not required to establish the basis for the retroactive rescission, but rather had the burden of establishing that it complied with the law of the sister state which permits retroactive rescission (see Utopia Equip., Inc., v Infinity Ins. Co., 2017 NY Slip Op 50332[U]).

In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Florida law (see Hu-Nam-Nam v Infinity Ins. Co., 2016 NY Slip Op 50391[U]).

We have considered plaintiff’s remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 24, 2018

Cited in this decision

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

Utopia Equip., Inc. v Infinity Ins. Co. (2017 NY Slip Op 50332(U)) FollowedAn insurer relying on retroactive rescission under Florida law must prove compliance with that law rather than the basis for rescission.
Hu-Nam-Nam v Infinity Ins. Co. (2016 NY Slip Op 50391(U)) FollowedThe insurer established a valid retroactive rescission of the Florida policy based on material misrepresentations about residence and garaging.

Similar decisions

Utopia Equip. Inc. v Chubb Indem. Ins. Co. (2017 NY Slip Op 50540(U))The insurer failed to prove that the provider submitted its no-fault claims beyond the applicable 45-day limit.
Utopia Equip., Inc. v Maya Assur. Co. (2016 NY Slip Op 50463(U))The provider's renewal motion failed because a later decision did not constitute a change in law altering the prior determination.
Universal Health Chiropractic, P.C. v Infinity Prop. & Cas. Co. (2014 NY Slip Op 50350(U))The insurer established a valid retroactive rescission of the assignor's Florida automobile policy for material misrepresentations.
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.
Compas Med., P.C. v Infinity Group (2016 NY Slip Op 50042(U))The insurer established valid retroactive rescission under Florida law, and the provider failed to raise a triable issue.