Commitment Care, P.T., P.C. v Travelers Home & Mar. Ins. Co. (2019 NY Slip Op 51157(U))

Law Office of Aloy O. Ibuzor (Michelle O’Meally Rogers of counsel), for appellant. Gary Tsirelman, P.C. (Darya Klein of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered February 10, 2017. The order denied defendant’s 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, defendant appeals from an order of the Civil Court which denied defendant’s motion which had sought summary judgment dismissing the complaint upon the ground that plaintiff’s assignor had procured the insurance policy in question by making a material misrepresentation as to the ownership and use of the subject vehicle.

“A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented. To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011] [internal quotation marks and citations omitted]).

Upon a review of the record, we find that defendant failed to establish as a matter of law that it would not have issued the policy in question. Consequently, defendant did not demonstrate, prima facie, that the misrepresentation by plaintiff’s assignor was material.

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.