Opinion
No. 2013–1345 K C.
04-16-2015
JAMAICA DEDICATED MEDICAL CARE. P.C. as Assignee of Lalbachan Sooklall, Respondent, v. PRAETORIAN INS. CO., Appellant.
Opinion
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor, the insured, had fraudulently procured the insurance policy. By order entered January 24, 2013, the Civil Court denied defendant's motion due to defendant's failure to annex to its motion papers a copy of the original insurance policy.
The Civil Court properly denied defendant's motion, since defendant did not submit sufficient evidence in support of its motion to establish its entitlement to judgment as a matter of law. While the transcript of the insured's testimony at an examination under oath (EUO) was admissible (see American States Ins. Co. v. Huff, 119 AD3d 478 [2014] ), the insured's EUO testimony failed to eliminate all material issues of fact as to his actual residence at the time he procured the policy (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ). Furthermore, the investigative report submitted by defendant in support of its motion was based upon statements that constituted inadmissible hearsay (see Petrillo v. Town of Hempstead, 85 AD3d 996 [2011] ; Saunders v. 551 Galaxy Realty Corp., 64 AD3d 564 [2009] ). Consequently, as defendant failed to make a prima facie showing that the insured had fraudulently procured the insurance policy, defendant's motion for summary judgment dismissing the complaint was properly denied.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.