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

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 25, 2010, deemed from a judgment of the same court entered December 7, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 25, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment 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. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the denial of claim forms at issue, which denied the claims on the ground of lack of medical necessity. Moreover, defendant annexed to its motion papers an affirmed independent medical examination (IME) report which set forth a factual basis and medical rationale for the determination by defendant’s chiropractor that there was a lack of medical necessity for the services rendered (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In opposition to defendant’s cross motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation or an affidavit from a medical professional rebutting the conclusions set forth in the IME report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th [*2]& 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the Civil Court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 25, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal from the order is deemed to be from a judgment of the same court entered December 7, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the denial of claim forms at issue, which denied the claims on the ground of lack of medical necessity. Moreover, defendant annexed to its motion papers an affirmed independent medical examination (IME) report which set forth a factual basis and medical rationale for the determination by defendant’s chiropractor that there was a lack of medical necessity for the services rendered (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In opposition to defendant’s cross motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation or an affidavit from a medical professional rebutting the conclusions set forth in the IME report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 [*2]NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the Civil Court properly granted defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 11, 2010, deemed from a judgment of the same court entered July 20, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 11, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment 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 granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. Moreover, defendant annexed to its motion papers an affirmed independent medical examination (IME) report which set forth a factual basis and medical rationale for the determination by defendant’s chiropractor that there was a lack of medical necessity for the supplies provided (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In opposition to defendant’s motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation or an affidavit from a medical professional rebutting the conclusions set forth in the IME report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff’s remaining [*2]contentions either lack merit or are improperly raised for the first time on appeal. Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered June 15, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered September 21, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. Moreover, defendant annexed to its cross motion a sworn peer review report which set forth a factual basis and medical rationale for the determination that there was a lack of medical necessity for the supplies provided (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, the burden shifted to plaintiff to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v [*2]Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In opposition to defendant’s cross motion, plaintiff submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, defendant’s cross motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the judgment is reversed, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 7, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

In support of its motion for summary judgment, defendant submitted an affidavit executed by its litigation examiner which was sufficient to establish that defendant’s NF-10 form, which denied plaintiff’s claim on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted a peer review report of its psychologist, to which plaintiff objected in its opposing papers on the ground that the report was not in proper form. The Civil Court correctly held that the peer review report was not in admissible form because, pursuant to CPLR 2106, defendant’s psychologist could not affirm the truth of the statements contained therein (see Pascucci v Wilke, 60 AD3d 486 [2009]) and while the peer review report contained a notary public’s stamp and signature, it contained no attestation that the psychologist had been duly sworn or that she had appeared before the notary public (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b).

With respect to plaintiff’s cross motion for summary judgment, a no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the [*2]defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the defendant issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). Here, while plaintiff demonstrated that the claim had not been paid, it failed to demonstrate either that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of claim form (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

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

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 2, 2009. The order, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint.

Subsequent to the entry of the order from which plaintiff appeals, plaintiff executed a release bearing the caption of the instant case as well as its index number, which stated that plaintiff released all claims “ever had, now have or hereafter can, shall or may, have for, upon or by reason of, an assignment of rights from [its assignor], insofar as the foregoing relates to the claims forming the object of the instant action.” Inasmuch as the claims at issue on this appeal were interposed in plaintiff’s complaint in this action, plaintiff voluntarily relinquished any right to recover upon these claims (see UCC 1-107).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), dated October 29, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment with respect to so much of the complaint as sought to recover upon a claim for $612.59, and a claim for $167.07 for services rendered September 8, 2006 through September 19, 2006, are denied and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case upon the five claims for which plaintiff was awarded summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

The affidavits submitted by defendant established that plaintiff’s claims for $612.59, $167.07 (for services rendered on August 15, 2006) and $167.07 (for services rendered September 8, 2006 through September 19, 2006) had been timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground that the assignor had failed to appear at independent medical examinations (IMEs).

Defendant established its prima facie entitlement to summary judgment dismissing so much of the complaint as sought to recover upon claims in the amount of $612.59 and $167.07 (for services rendered September 8, 2006 through September 19, 2006). Defendant submitted an affidavit which established that the IME scheduling letters had been timely mailed to the assignor by Independent Physical Exam Referrals in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, [*2]P.C., 17 Misc 3d 16). Defendant also submitted an affirmation by the physician who was to perform the IMEs, which stated that the assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff failed to rebut defendant’s prima facie showing, defendant is entitled to summary judgment upon these claims.

However, with respect to the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s $167.07 claim for services rendered on August 15, 2006, defendant failed to submit an affidavit from someone with personal knowledge to establish that plaintiff’s assignor had failed to appear for scheduled IMEs on July 27, 2006 and August 10, 2006 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; see also South Nassau Orthopedic Surgery v Auto One Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51300[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As a result, we do not disturb so much of the order as awarded plaintiff summary judgment with respect to this claim.

Since defendant also failed to establish that it had timely denied plaintiff’s $668.28 claim (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), we do not disturb so much of the order as awarded plaintiff summary judgment with respect to this claim. Lastly, in light of defendant’s concession that it did not timely deny plaintiff’s $222.76 claim, we find no basis to disturb so much of the order as awarded plaintiff summary judgment with respect to this claim.

Accordingly, the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment with respect to so much of the complaint as sought to recover upon a claim for $612.59, and a claim for $167.07 for services rendered September 8, 2006 through September 19, 2006, are denied and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims are granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, January 14, 2013

APPEARANCES OF COUNSEL

Freiberg, Peck & Kang, LLP, New York City (Yilo J. Kang of counsel), for appellant. Mandell & Santora, Lynbrook (Eitan Nof of counsel), for respondent.

{**38 Misc 3d at 57} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, and the complaint is dismissed.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the parties’ attorneys stipulated that plaintiff had established a prima facie case regarding the submission of his claim in the amount of $1,310.94; that, some time after the receipt of plaintiff’s claim, defendant, a Florida insurer, had issued letters rescinding plaintiff’s assignor’s insurance policy ab initio on the ground that material misrepresentations had been made during the application process; and that defendant had refunded the assignor’s premiums. The parties’ attorneys further stipulated to the admission into evidence of plaintiff’s claim form, defendant’s rescission letter, the policy application, and the insurance policy. Finally, the parties agreed that the sole issue for the Civil Court to decide was “whether or not Defendant has to establish the reason for rescinding its policy.” After trial, the Civil Court found for plaintiff, holding that New York law applied and that defendant was required, but failed, to present evidence in support of the underlying basis for its rescission of the policy. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5512 [a]).

Contrary to the conclusion of the Civil Court, New York law does not govern this matter. Rather, applying a “grouping of contacts” analysis (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]), we find that Florida law applied since Florida had the most significant contacts with the contracting party and the contract (see also 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]).

Florida Statutes Annotated § 627.409 permits the retroactive rescission of an insurance policy if there has been a material misrepresentation in an application for insurance. Where, as{**38 Misc 3d at 58} here, an insurer is not seeking a judicial decree of rescission in the action, but, rather, is seeking to establish that the policy had, in fact, been retroactively rescinded to a time prior to the commencement of the action, the insurer must simply demonstrate that it complied with the Florida statute by giving the requisite notice of the rescission to the insured and that it returned or tendered all premiums paid within a reasonable time after the discovery of the grounds for avoiding the policy (see Leonardo v State Farm Fire & Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also W.H.O. Acupuncture, P.C., 36 Misc 3d 4). Given the posture of this case, the insurer, under Florida law, does not have the burden of proving its good faith basis for the termination of the insurance policy (see generally Castellon v American Skyhawk Ins. Co., 785 So 2d 552 [Fla Dist Ct App, 3d Dist 2001] [cancellation of policy]). As the parties stipulated that the sole issue for trial was whether the insurer had to establish the reason for its rescission of the policy, and it was therefore essentially conceded that defendant had given notice of the rescission to the insured and had returned all premiums, defendant is entitled to judgment dismissing the complaint. We reach no other issue.

Accordingly, the judgment is reversed and the complaint is dismissed.

Rios, J. (dissenting and voting to affirm the judgment in the following memorandum). Plaintiff commenced this action to recover assigned first-party no-fault benefits. Plaintiff’s assignor was insured under an automobile insurance policy issued in the State of Florida, which contained a provision allowing for the retroactive cancellation of the policy if the policyholder made a “false, misleading” statement in the application for insurance. Six months following the accident involving plaintiff’s assignor, defendant disclaimed coverage based on its decision to void the policy ab initio. At trial, the insurance company presented no evidence other than its conclusion that the policy had been cancelled.

As the insurance policy was contracted in Florida, that state’s laws regarding cancellation are applicable (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). While Florida law allows for the retroactive cancellation of an automobile policy based on a material misrepresentation (see Fla Stat Ann § 627.409), the courts of Florida require the production of evidence that establishes the material misrepresentation.{**38 Misc 3d at 59}

An insurer seeking to rescind a policy pursuant to Florida Statutes Annotated § 627.409 must prove detrimental reliance on the false statement (see Griffin v American Gen. Life & Acc. Ins. Co., 752 So 2d 621 [Fla Dist Ct App, 2d Dist 1999]; Boca Raton Community Hosp., Inc. v Brucker, 695 So 2d 911 [Fla Dist Ct App, 4th Dist 1997]), and it is for the trier of fact to determine if the breach is material (see United Servs. Auto. Assn. v Clarke, 757 So 2d 554 [Fla Dist Ct App, 4th Dist 2000]). In applying Florida law to the issue of cancellation, the Appellate Division held that sufficient evidence was required to demonstrate that the policy would not have been issued but for the misrepresentation (see Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855 [2009]).

Here, no competent evidence was presented to establish the claim of misrepresentation other than the conclusion of the insurer (see Matter of Centennial Ins. Co. v Capehart, 220 AD2d 499 [1995]; Matter of Electric Ins. Co. v Woods, 101 AD2d 840 [1984]; Viuker v Allstate Ins. Co., 70 AD2d 295 [1979]; Sanchez v Maryland Cas. Co., 67 AD2d 681 [1979]; see also Penaranda v Progressive Am. Ins. Co., 747 So 2d 953 [Fla Dist Ct App, 2d Dist 1999]). Therefore, I would affirm the judgment in favor of plaintiff on this ground.

Pesce, P.J., and Aliotta, J., concur; Rios, J., dissents in a separate memorandum.

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered February 27, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered February 27, 2012, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to the assignor and his attorney, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 27, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated February 17, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), dated February 17, 2012, insofar as appealed from, reversed, without costs, motion granted in toto and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) and examinations under oath (EUOs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 24, 2012