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W.H.O. Acupuncture, P.C. As Assignee of Bibi Gray and Leroy Taiste v. Infinity Insurance Company

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


October 16, 2012

W.H.O. ACUPUNCTURE, P.C. AS ASSIGNEE OF BIBI GRAY AND LEROY TAISTE,
RESPONDENT,
v.
INFINITY INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 12, 2011.

W.H.O. Acupuncture, P.C. v Infinity 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 16, 2012

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

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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of coverage due to the rescission of the automobile insurance policy in question, arguing that a conflict of law analysis required the application of Connecticut law. The Civil Court granted plaintiff's motion and denied defendant's cross motion.

Defendant issued the insurance policy in Connecticut to the insured, who purportedly resided in Connecticut, for a vehicle which was purportedly garaged in Connecticut. The only connection between the policy and New York is that the third-party assignors were injured while riding in the insured's vehicle in New York. Consequently, we find that Connecticut 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]).

Although Connecticut law provides for a common law right to retroactively rescind an automobile insurance policy, in the case of Munroe v Great American Ins. Co. (234 Conn 182, 193, 661 A2d 581 [1995]), the Connecticut Supreme Court held that the Connecticut Legislature did not intend that an insurer's common law right of rescission as to innocent third-party victims, such as involved herein, survive the enactment of the Connecticut automobile insurance statutes. Therefore, any retroactive rescission of the subject insurance policy did not affect the rights of the innocent third-party assignors, and defendant's cross motion for summary judgment dismissing the complaint on the ground of lack on coverage due to the retroactive rescission of the automobile insurance policy was properly denied. Accordingly, as defendant raises no issue with respect to plaintiff's prima facie showing upon its motion for summary judgment, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: October 16, 2012

20121016

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