Alignment Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.

[*1] Alignment Chiropractic, P.C. v Travelers Home & Mar. Ins. Co. 2020 NY Slip Op 50994(U) Decided on August 28, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-1649 K C

Alignment Chiropractic, P.C., as Assignee of Frantz Lindor, Respondent,

against

Travelers Home and Marine Ins. Co., Appellant.

Law Offices of Aloy O. Ibuzor (Michael Rappaport of counsel), for appellant. Gary Tsirelman, P.C. (Jung Pryjma of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 4, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much an order of the Civil Court as denied defendant's motion which had sought 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 the ownership and use of the vehicle in question.

"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 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, prima facie, that the misrepresentation by plaintiff's assignor was material (see Commitment Care, P.T., P.C. v Travelers Home & Mar. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51157[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020