Gutierrez v Tri State Consumers Ins. Co.

[*1] Gutierrez v Tri State Consumers Ins. Co. 2015 NY Slip Op 51703(U) Decided on November 19, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1006 Q C

Jaime G. Gutierrez as Assignee of JULIO CORONEL, Appellant, -

against

Tri State Consumers Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 16, 2013. The order denied plaintiff's motion for summary judgment and granted the branch of defendant's cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy.

ORDERED that the order is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the branch of defendant's cross motion seeking summary judgment dismissing the complaint on the ground that the amount sought to be recovered exceeded the amount permitted by the workers' compensation fee schedule.

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 on the ground that plaintiff's assignor had fraudulently procured the insurance policy by misrepresenting, among other things, whether he would be using the vehicle being insured for work, and on the alternate ground that the amount sought to be recovered exceeded the amount permitted by the workers' compensation fee schedule. By order entered April 16, 2013, the Civil Court denied plaintiff's motion and granted the branch of defendant's cross motion seeking summary judgment dismissing the complaint on the ground that defendant had established its defense of fraudulent procurement of the insurance policy. The April 16, 2013 order did not pass upon the branch of defendant's cross motion seeking summary judgment dismissing the complaint on the alternate ground that the amount sought to be recovered exceeded the amount permitted by the workers' compensation fee schedule.

Defendant demonstrated that the assignor, who was also the insured under the insurance policy in question, had misrepresented, among other things, his use of the

subject vehicle when he had submitted his application for insurance to defendant. However, defendant failed to submit sufficient evidence to establish that this misrepresentation was material (cf. New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, the branch of defendant's cross motion seeking summary judgment dismissing the [*2]complaint due to plaintiff's assignor's fraudulent procurement of the insurance policy should have been denied.

Plaintiff's contention that its motion for summary judgment should have been granted lacks merit inasmuch as plaintiff failed to establish its prima facie case since it did not establish either that defendant had failed to deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing the complaint on the ground of

fraudulent procurement of the insurance policy is denied, and the matter is remitted to
the Civil Court for a determination of the branch of defendant's cross motion seeking summary judgment dismissing the complaint on the ground that the amount sought to be recovered exceeded the amount permitted by the workers' compensation fee schedule.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 19, 2015