Opinion
570373/16
09-27-2016
Healthy Way Acupuncture, P.C. a/a/o Juan Martinez, Plaintiff-Appellant, v. USAA General Indemnity Co., Defendant-Respondent.
PRESENT: Shulman, J.P., Gonzalez, J.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), dated May 13, 2014, which granted defendant's motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Lynn R. Kotler, J.), dated May 13, 2014, reversed, with $10 costs, defendant's motion denied, and the complaint reinstated.
The defendant-insurer's motion for summary judgment dismissing this first-party no-fault action should have been denied. While defendant submitted evidence showing that plaintiff's assignor misrepresented his military status in the underlying insurance policy application, defendant is precluded from asserting that defense as a result of its untimely denial of the claim (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; Gutierrez v United Servs. Auto. Assn., 47 Misc 3d 152[A], 2015 NY Slip Op 50797[U] [App Term, 2d, 11th & 13th Jud Dists]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur Decision Date: September 27, 2016