Opinion
2014-1021 Q C
01-08-2016
Compas Medical, P.C. as Assignee of MELODY GORHAM, Appellant-Respondent, v. Infinity Group, Respondent-Appellant.
PRESENT: :
Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 11, 2014. The order, insofar as appealed from by plaintiff, denied plaintiff's motion for summary judgment and, upon denying defendant's cross motion for summary judgment dismissing the complaint, made, in effect, CPLR 3212 (g) findings in favor of defendant and limited the issues for trial. The order, insofar as cross-appealed from by defendant and as limited by its brief, denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed and cross-appealed from, is modified by striking the provision limiting the issues for trial and by providing that defendant's cross motion for summary judgment dismissing the complaint is granted; as so modified, the order, insofar as appealed and cross-appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Florida, and that, based upon a conflict-of-law analysis, Florida law applied, pursuant to which there was a lack of coverage due to the valid rescission of the automobile insurance policy. The Civil Court, in effect, found for all purposes in the action (see CPLR 3212 [g]) that plaintiff had submitted to defendant the claim forms at issue, that defendant had not paid the claims within the requisite 30-day period and that defendant had established prima facie that there was no coverage available under the policy as a result of defendant's valid rescission under Florida law. The court, however, determined that triable issues of fact existed as to whether the policyholder was a resident of Florida and whether the vehicle involved in the accident was garaged in Florida. Thus, in effect, the Civil Court determined that plaintiff would be afforded an opportunity at trial to establish that the rescission of the underlying insurance policy in accordance with Florida law was ineffective, as lacking any factual basis therefor.
On appeal, plaintiff contends that the Civil Court should have denied defendant's cross motion for summary judgment in its entirety and granted plaintiff's motion for summary judgment. On its cross appeal, defendant contends that it made a prima facie showing of its defense of rescission of the underlying insurance policy in accordance with Florida law, which showing was not rebutted, and, thus, its cross motion for summary judgment dismissing the complaint should have been granted.
The vehicle involved in the accident at issue, which occurred in New York, was being driven by plaintiff's assignor, the daughter of the policyholder. At the time of the accident, the vehicle was insured by defendant under a Florida automobile insurance policy. After defendant's investigation into the accident revealed that the insured had not resided at the Florida address listed on the insurance application and that the vehicle had not been garaged at that Florida address, defendant rescinded the policy, ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance.
In order to show that it properly voided a motor vehicle policy ab initio, in accordance with Florida law, an insurer must demonstrate that it had given notice of the rescission to the insured and that it had returned or tendered, within a reasonable time after the discovery of the grounds for avoiding the policy, all premiums that had been paid (see Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). As defendant demonstrated, through the supporting affidavit of its senior litigation specialist and accompanying documents, that it had fully complied with the foregoing requirements, defendant's prima facie entitlement to summary judgment was established (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]). In opposition to defendant's prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Florida law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, it was error for the Civil Court to conclude that triable issues of fact existed.
Accordingly, the order, insofar as appealed and cross-appealed from, is modified by striking the provision limiting the issues for trial and by providing that defendant's cross motion for summary judgment dismissing the complaint is granted.
Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: January 08, 2016