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New Millennium Psychological Services, P.C. As Assignee of Nicolas Diaz v. Commerce Insurance Company

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


December 16, 2011

NEW MILLENNIUM PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF NICOLAS DIAZ,
APPELLANT,
v.
COMMERCE INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 29, 2010, deemed from a judgment of the same court entered August 11, 2010 (see CPLR 5501 [c]).

New Millennium Psychological Servs., P.C. v Commerce Ins. Co.

Decided on December 16, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

The judgment, entered pursuant to the April 29, 2010 order granting defendant's motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without 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 misrepresenting his state of residence in connection with the issuance of the insurance policy in question. The Civil Court granted defendant's motion for summary judgment and dismissed the complaint. This appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The sole argument raised on appeal is whether defendant proffered admissible evidence of a fraudulently procured insurance policy. Upon our review of the record, we find that the affidavits and investigative reports annexed to defendant's motion papers sufficiently established that the assignor, who was also the insured under the subject insurance policy, had misrepresented his state of residence. Furthermore, the evidence submitted by defendant established that this misrepresentation was material since defendant would not have issued the policy had it known that the assignor resided in the State of New York, as defendant was not licensed to insure vehicles in New York at the time of this loss, and would not have issued the subject policy to him. Thus, the assignor was ineligible to receive first-party no-fault benefits under the insurance policy in question (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; Central Radiology Servs., P.C. v Commerce Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50948[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). In opposition, plaintiff, as assignee standing in the shoes of its assignor (see New York & Presbyt. Hosp. v Country Wide Ins. Co., NY3d , 2011 NY Slip Op 07149 [2011]), failed to submit any evidence sufficient to defeat defendant's motion for summary judgment.

Accordingly, the judgment is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: December 16, 2011

20111216

© 1992-2011 VersusLaw Inc.



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