May 18, 2018

Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co. (2018 NY Slip Op 50741(U))

Headnote

The main issue in this case was whether an insurance company was entitled to summary judgment dismissing a complaint brought by a healthcare provider to recover assigned first-party no-fault benefits, on the basis that the plaintiff's assignor had made a material misrepresentation as to his place of residence when procuring the insurance policy. The court considered the definition of a material misrepresentation and the evidence presented by the insurance company regarding its underwriting practices. The court found that the insurance company failed to establish, as a matter of law, that it would not have issued the policy in question if the correct information had been disclosed, and therefore, the misrepresentation by the plaintiff's assignor was not considered material. As a result, the court reversed the order granting the insurance company's motion for summary judgment and denied the motion, allowing the complaint to proceed.

Reported in New York Official Reports at Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co. (2018 NY Slip Op 50741(U))

Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co. (2018 NY Slip Op 50741(U)) [*1]

Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co.

2018 NY Slip Op 50741(U) [59 Misc 3d 145(A)]

Decided on May 18, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1448 K C

Liliya Veksler, LCSW, P.C., as Assignee of Carlos Canela, Appellant,
against
Ameriprise Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 11, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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 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.

“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 [*2]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 that the misrepresentation by plaintiff’s assignor was material.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 18, 2018