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Central Radiology Services, P.C. As Assignee of Sean Thegg v. Commerce Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


May 23, 2011

CENTRAL RADIOLOGY SERVICES, P.C. AS ASSIGNEE OF SEAN THEGG,
RESPONDENT,
v.
COMMERCE INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 21, 2009, deemed from a judgment of the same court entered December 1, 2009 (see CPLR 5501 [c]).

Central Radiology Servs., P.C. v Commerce Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2011

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The judgment, entered pursuant to the October 21, 2009 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $2,670.40.

ORDERED that the judgment is reversed, without costs, the order entered October 21, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted 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 moved for summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy by virtue of the assignor misrepresenting his state of residence in connection with the issuance of the insurance policy in question. Plaintiff cross-moved for summary judgment. The Civil Court denied defendant's motion for summary judgment and granted plaintiff's cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant's claims adjuster was sufficient to establish that defendant's denial of claim forms were timely mailed in accordance with its standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant was not precluded from raising its defense of fraudulent procurement of the insurance policy (cf. Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]). As the affidavits annexed to defendant's motion papers established that the assignor had misrepresented his state of residence, the assignor was ineligible to receive first-party no-fault benefits under the insurance policy in question (see A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Plaintiff, as assignee, stands in the assignor's shoes and, thus, may not recover in this action (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC, 12 Misc 3d 8). Accordingly, the judgment is reversed, the order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: May 23, 2011

20110523

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