Optimal Well-Bing Chiropractic, P.C. v Infinity Ins. Co.

[*1] Optimal Well-Bing Chiropractic, P.C. v Infinity Ins. Co. 2013 NY Slip Op 52065(U) Decided on December 9, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2012-834 Q C.

Optimal Well-Bing Chiropractic, P.C. as Assignee of WALDY COLLADO, Respondent,

against

Infinity Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), dated February 28, 2012, deemed from a judgment of the same court entered March 14, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 28, 2012 order granting plaintiff's motion for summary judgment and denying 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant argued that a conflict-of-law analysis required the application of Pennsylvania law, pursuant to which there was a lack of coverage due to a rescission of the automobile insurance policy in question. Defendant appeals from an order of the Civil Court dated February 28, 2012, which granted plaintiff's motion for summary judgment and denied defendant's cross motion. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant issued the automobile insurance policy in Pennsylvania to the insured, who [*2]purportedly resided in Pennsylvania, for a vehicle which was purportedly garaged in Pennsylvania. The only connection between the policy and New York State is that plaintiff's assignor was injured while riding in the insured's vehicle in New York. Consequently, we find that Pennsylvania law is controlling under New York's conflict of law rules (see Matter of Government Empls. Ins. Co. v Nichols, 8 AD3d 564 [2004]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 58 [2000]).

Although Pennsylvania law provides for a common law right by the insurer to rescind a policy of insurance, in Erie Ins. Exchange v Lake (543 Pa 363, 375, 671 A2d 681, 687 [1996]), the Pennsylvania Supreme Court held that an automobile insurance policy cannot be retroactively rescinded with respect to third parties who were harmed through no fault of their own. Therefore, any rescission of the insurance policy in question did not affect the rights of the innocent assignor. Consequently, defendant's cross motion for summary judgment dismissing the complaint on the ground of lack of coverage due to the rescission of the insurance policy should have been denied on this ground (see W.H.O. Acupuncture, P.C. v Infinity Ins. Co., 37 Misc 3d 130[A], 2012 NY Slip Op 51965[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, and since defendant raises no issue with respect to plaintiff's prima facie showing upon its summary judgment motion, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 09, 2013