Universal Health Chiropractic, P.C. v Infinity Prop. & Cas. Co.

[*1] Universal Health Chiropractic, P.C. v Infinity Prop. & Cas. Co. 2014 NY Slip Op 50350(U) Decided on February 28, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ
2012-1883 Q C.

Universal Health Chiropractic, P.C. as Assignee of MARIE DORVILNE, Respondent, February 28, 2014

against

Infinity Property & Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered July 23, 2012. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. The vehicle involved in the accident at issue was, at the time of the accident, insured by defendant under a Florida automobile insurance policy issued to plaintiff's assignor. After an investigation into the accident revealed that the assignor had not resided at the Florida address listed on her insurance application and that her vehicle had not been garaged at that Florida address, defendant cancelled the policy ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance (see Penaranda v Progressive Am. Ins. Co., 747 So 2d 953 [Fla Dist Ct App, 2d Dist 1999]; see also Bleasdell v Underwriters Guar. Ins. Co., 707 So 2d 411 [Fla Dist Ct App, 1st Dist 1998]).

Under Florida law, in order to show that it voided a motor vehicle policy ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, an insurer must demonstrate that it gave 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 and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). As defendant demonstrated, through the supporting affidavit of its litigation specialist and accompanying documents, that it had fully complied with the foregoing requirements, defendant's prima facie entitlement to summary judgment was established (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]). In opposition to defendant's prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Florida law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the Civil Court should [*2]have granted defendant's motion for summary judgment dismissing the complaint.

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

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014