December 11, 2020

Modern Acupuncture, P.C. v Omni Ins. Co. (2020 NY Slip Op 51506(U))

Headnote

The court considered the fact that defendant moved for summary judgment to dismiss the complaint, arguing that the South Carolina automobile insurance policy was fraudulently procured by the assignor, who had allegedly made misrepresentations on her application for insurance. The main issue decided was whether the insurance company was entitled to summary judgment dismissing the complaint based on the rescission of the policy under South Carolina law. The holding of the case was that the defendant failed to establish its entitlement to judgment as a matter of law, as it did not show that it had complied with the requirements of South Carolina law for retroactive rescission of the policy. Therefore, the order denying the defendant's motion for summary judgment was affirmed.

Reported in New York Official Reports at Modern Acupuncture, P.C. v Omni Ins. Co. (2020 NY Slip Op 51506(U))

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

Modern Acupuncture, P.C., as Assignee of Vilma Alvarenga, Respondent,
against
Omni Insurance Company, Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Lisa Grey, J.), entered September 20, 2018. 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 for injuries the assignor sustained in a motor vehicle accident in New York on June 5, 2015, defendant moved for summary judgment dismissing the complaint on the ground that the South Carolina automobile insurance policy was fraudulently procured by the assignor, who is also the insured, based on alleged misrepresentations which she had made on her application for insurance. By order entered September 20, 2018, the Civil Court, applying the substantive law of South Carolina (see Portfolio Recovery Assoc., LLC v King, 14 NY3d 410 [2010]), denied defendant’s motion. We note that no issue is raised on appeal regarding the applicability of South Carolina law.

South Carolina allows an insurance company to rescind an automobile insurance policy ab initio under certain circumstances (see Strickland v Prudential Ins. Co., 278 SC 82, 86-87, 292 SE2d 301, 304 [1982]). In order for an insurance company to be entitled to summary judgment dismissing the complaint based on a rescission, ab initio, of the policy issued in a sister state, the insurance company “has the burden of establishing that it complied with the law of the [*2]sister state which permits retroactive rescission” (Delta Diagnostic Radiology, P.C. v Infinity Group, 49 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see Parisien v Omni Indem. Co., 67 Misc 3d 141[A], 2020 NY Slip Op 50725[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Craigg v Infinity Select Ins. Co., 38 Misc 3d 56 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; 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]). Upon a review of the record, we find that the papers defendant submitted in support of its motion for summary judgment dismissing the complaint failed to establish its prima facie entitlement to judgment as a matter of law, as it did not show that defendant had complied with the requirements of South Carolina Code Annotated § 38-75-730 (b).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 11, 2020