JCC Med., P.C. v Infinity Group
2016 NY Slip Op 26439 [58 Misc 3d 53]
Accepted for Miscellaneous Reports Publication
Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 14, 2018


[*1]
JCC Medical, P.C., as Assignee of Alou Ba, Appellant,
v
Infinity Group, Respondent.

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 16, 2016

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.

Freiberg, Peck & Kang, LLP, Armonk (Yilo J. Kang of counsel), for respondent.

{**58 Misc 3d at 54} OPINION OF THE COURT
Memorandum.

Ordered that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that, upon the application of Georgia law, the automobile insurance policy had been rescinded ab initio, and, thus, there was no coverage for the July 18, 2011 accident in question. By order entered June 18, 2014, the Civil Court granted defendant's motion.

It is uncontroverted that defendant had issued a Georgia automobile insurance policy to the brother of plaintiff's assignor, "effective from August 28, 2010 through August 28, 2011," who had made various representations to defendant in his insurance application, including that he resided in Georgia, that the insured vehicle was garaged in Georgia, and that the assignor was an adult who resided in his Georgia household and also drove the insured vehicle. On July 18, 2011, the assignor was involved in an automobile accident while driving the insured vehicle in Brooklyn, NY. In support of its motion for summary judgment dismissing the complaint, defendant argued, among other things, that there was a conflict between the laws of Georgia and New York regarding the retroactive rescission of automobile insurance policies, that Georgia law controlled herein, and that, pursuant to Georgia Code Annotated § 33-24-7, the Georgia automobile insurance policy in question had been retroactively rescinded after defendant had discovered that the assignor, in fact, lived in Brooklyn, NY and garaged the insured vehicle on the street in Brooklyn.

Upon a review of the record, we find that defendant failed to show that there is a conflict between the laws of Georgia and New York with respect to the retroactive rescission of an automobile insurance policy which has been issued to a natural person for a private passenger vehicle, as both states prohibit{**58 Misc 3d at 55} the retroactive rescission of such a policy (see Vehicle and Traffic Law § 313; Matter of Government Empls. Ins. Co. v Nichols, 8 AD3d 564 [2004]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 58 [2000]; see also Georgia Code Ann §§ 33-24-44, 33-24-45; Sentry Indem. Co. v Sharif, 248 Ga 395, 282 SE2d 907 [1981]; Liberty Ins. Corp. v [*2]Ferguson, 263 Ga App 714, 589 SE2d 290 [2003]; FCCI Ins. Group v Rodgers Metal Craft, Inc., 2008 WL 2951992, *7-8, 2008 US Dist LEXIS 57649, *21-23 [MD Ga, July 28, 2008, No. 4:06-CV-107 (CDL)]; cf. T.J. Blake Trucking, Inc. v Alea London, Ltd., 284 Ga App 384, 643 SE2d 762 [2007] [upholding a retroactive rescission pursuant to Georgia Code Annotated § 33-24-7 where the insurance policy was issued to a corporation, not "a natural person"]). Under Georgia law, automobile insurance policies that are issued to "a natural person" for a "private passenger" vehicle cannot be retroactively rescinded pursuant to Georgia Code Annotated § 33-24-7, but may be prospectively cancelled pursuant to the procedure set forth in Georgia Code Annotated § 33-24-45 "which specifically regulates the cancellation of automobile insurance policies" (Liberty Ins. Corp. v Ferguson, 263 Ga App at 715-716, 589 SE2d at 291; see also Sentry Indem. Co. v Sharif, 248 Ga 395, 282 SE2d 907 [1981];[FN*] FCCI Ins. Group v Rodgers Metal Craft, Inc., 2008 WL 2951992,{**58 Misc 3d at 7} *7-8, 2008 US Dist LEXIS 57649, *21-23), and does not allow retroactive rescission (see Georgia Code Ann §§ 33-24-44 [d]; 33-24-45 [b]).

In view of the foregoing, defendant failed to show that the automobile insurance policy was retroactively rescinded and, thus, that there was no coverage for the July 18, 2011 accident.

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

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



Footnotes


Footnote *:It is noted that Georgia Code Annotated § 33-24-7 was formerly Georgia Code Annotated § 56-2409, and Georgia Code Annotated § 33-24-45 was formerly Georgia Code Annotated § 56-2430.1. In Sentry (248 Ga at 396, 282 SE2d at 908), which was decided before the Georgia No-Fault Act was repealed in October 1991, the Georgia Supreme Court held "that Code Ann. § 56-2409 does not apply to insurance policies covered by Code Ann. § 56-2430.1."