Renelique v. Nat'l Liab. & Fire Ins. Co.

Full title: Pierre Jean Jacques Renelique, as Assignee of EDWITCH DENIS, Appellant, v…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Nov 1, 2016

2016 N.Y. Slip Op. 51615 (N.Y. App. Term 2016)

48 N.Y.S.3d 267

Opinion

2014-25 Q C

11-01-2016

Pierre Jean Jacques Renelique, as Assignee of EDWITCH DENIS, Appellant, v. National Liability & Fire Insurance Company, Respondent.

PESCE, P.J., ALIOTTA and SOLOMON, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered December 4, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Defendant's cross motion was based upon the ground that plaintiff's assignor had procured the insurance policy in question by making a material misrepresentation as to his place of residence. As plaintiff argues, defendant failed to establish as a matter of law that the misrepresentation by plaintiff's assignor was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2011]). Consequently, defendant's cross motion should have been denied.

However, contrary to plaintiff's contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur. Decision Date: November 01, 2016