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Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co.
2015 NY Slip Op 50756(U) [47 Misc 3d 147(A)]
Decided on May 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2013-2386 K C

Jamaica Dedicated Medical Care, P.C. as Assignee of LALBACHAN SOOKLALL, Respondent,

against

Praetorian Insurance Co., Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered January 29, 2013. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

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 of fraudulent procurement of the insurance policy by virtue of the assignor's misrepresentation of his address in order to obtain insurance at a lower premium. Plaintiff opposed the motion. The Civil Court denied defendant's motion, and we affirm.


"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (id.).

An insured may be denied no-fault benefits where an insurer submits evidence in admissible form showing that the insured had fraudulently procured the insurance policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]; 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]). Defendant argued that when the insured, plaintiff's assignor, had applied for the insurance policy at issue, he had provided an address in Wappingers Falls, Dutchess County, an area which had a lower premium for coverage than Queens County, where he actually resided. While the certified transcript of plaintiff's assignor's testimony at an examination under oath was admissible (see American States Ins. Co. v Huff, 119 AD3d 478 [2014]), the assignor's testimony failed to eliminate all material issues of fact (see Winegrad, 64 NY2d at 853) as to whether he lived in Queens County, rather than Wappingers Falls, Dutchess County, at the pertinent time. Defendant's exhibits also included its investigator's report, which was not sufficient to establish that the assignor did not reside in Wappingers Falls during the relevant period, as the report was based upon statements that constituted inadmissible hearsay (see Petrillo v Town of Hempstead, 85 AD3d 996 [2011]; Saunders v 551 Galaxy Realty Corp., 64 AD3d 564 [2009]). Consequently, as defendant failed to make a prima facie showing that plaintiff's assignor had made material misrepresentations in order to obtain insurance at reduced premiums (cf. Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; AA Acupuncture Serv., P.C. v Safeco Ins. Co. of Am., 25 Misc 3d 30 [App Term, 1st Dept 2009]), defendant's motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order is affirmed.

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


Decision Date: May 06, 2015