ARIS Diagnostic Med., PLLC v Ameriprise Ins. Co.

[*1] ARIS Diagnostic Med., PLLC v Ameriprise Ins. Co. 2020 NY Slip Op 51380(U) Decided on November 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2019-120 K C

ARIS Diagnostic Medical, PLLC, as Assignee of Paul Villon, Respondent,

against

Ameriprise Insurance Company, Appellant.

Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered November 8, 2018. The order, insofar as appealed from as limited by the brief, granted plaintiff's cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and plaintiff's cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as granted plaintiff's cross motion for summary judgment.

Upon a review of the record, we find that defendant demonstrated the existence of issues of fact as to whether a misrepresentation had been made to defendant in connection with the issuance of the subject insurance policy (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]) and, if such a misrepresentation was made, whether it was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2011]).

Accordingly, the order, insofar as appealed from, is reversed and plaintiff's cross motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020