Liliya Veksler, LCSW, P.C. v. Ameriprise Ins. Co.

Liliya Veksler, LCSW, P.C., as Assignee of Carlos Canela, Appellant, against Ameriprise Ins. Co., Respondent. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 11, 2016. The order granted defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint 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. "A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented. To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application" (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011] [internal [*2]quotation marks and citations omitted]). Upon a review of the record, we find that defendant failed to establish as a matter of law that it would not have issued the policy in question. Consequently, defendant did not demonstrate that the misrepresentation by plaintiff's assignor was material. Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied. PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: May 18, 2018