Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 28, 2012. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff's motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff's motion and cross-moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Pennsylvania, and that, based upon a conflict-of-law analysis, Pennsylvania law applied, pursuant to which there was a lack of coverage due to the valid rescission of the automobile insurance policy. Defendant appeals from an order of the Civil Court which granted plaintiff's motion and denied defendant's cross motion on the ground that defendant was precluded from asserting its defense, citing Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc. (80 AD3d 603 [2011]).

In applying for the automobile insurance policy in Pennsylvania, the insured had indicated on her application that she resided in Pennsylvania and owned two vehicles which were garaged in Pennsylvania. The only connection between the policy and New York State was that plaintiff's assignor, who was not the named insured under the policy, was injured while driving one of the insured vehicles in New York. Consequently, we find that Pennsylvania law is controlling under New York's conflict of law rules (see 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 Optimal Well-Being Chiropractic, P.C. v Infinity Ins. Co., 41 Misc 3d 144[A], 2013 NY Slip Op 52065[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Pennsylvania law gives an insurer a common law right to rescind a policy of automobile insurance (see Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1 [1991]). The Pennsylvania Supreme Court has held, however, that while an automobile insurance policy may be retroactively rescinded as to an insured who has made a misrepresentation material to the acceptance of risk by the insurer, the policy may not be retroactively rescinded with respect to third parties "who are innocent of trickery, and injured through no fault of their own" (see Erie [*2]Ins. Exch. v Lake, 543 Pa 363, 375, 671 A2d 681, 687 [1996]). Although defendant, in its motion papers, set forth facts tending to demonstrate that the insured was the actual perpetrator of a fraud, and that, based on that fact, it rescinded the policy in accordance with Pennsylvania law, defendant's submissions did not conclusively establish that plaintiff's assignor was not an innocent third party. Consequently, defendant's cross motion failed to make a prima facie showing of defendant's entitlement to judgment as a matter of law.

However, defendant's submissions were sufficient to raise a triable issue of fact as to whether plaintiff's assignor was entitled to coverage under the subject insurance policy, thereby warranting the denial of plaintiff's motion.

Accordingly, the order is modified by providing that plaintiff's motion for summary judgment is denied.

Aliotta, J.P., Pesce and Weston, JJ., concur.
Decision Date: March 27, 2014