Opinion
No. 2013–653KC.
2014-08-20
DELTA DIAGNOSTIC RADIOLOGY, P.C. as Assignee of Jean Brouard, Respondent, v. NATIONAL LIABILITY & FIRE INSURANCE CO., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered November 20, 2012. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.
Present: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
ORDERED that the order is modified by providing that plaintiff's motion for summary judgment 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had obtained the insurance policy in question through fraud. The Civil Court granted plaintiff's motion and denied defendant's cross motion.
Inasmuch as defendant raises no issue on appeal with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's implicit determination with respect thereto.
The papers submitted by defendant were sufficient to establish that defendant had timely mailed ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ) its denial of claim form, which denied the claim on the ground of the fraudulent procurement of the insurance policy in question by virtue of the assignor's misrepresentation of his place of residence. Furthermore, defendant's papers demonstrated that a triable issue of fact exists as to whether plaintiff's assignor had provided a fraudulent address when he had obtained the insurance policy at issue. Consequently, plaintiff's motion for summary judgment should have been denied ( see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).
With respect to defendant's cross motion, upon the record before us, we find that defendant failed to make a prima facie showing of its entitlement to judgment dismissing the complaint as a matter of law.
Accordingly, the order is modified by providing that plaintiff's motion for summary judgment is denied.