Opinion
Index No. 153544/2021 Motion Seq. No. 002 NYSCEF Doc. No. 149
10-11-2023
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. ABLE CHIROPRACTIC, P.C., MEDNAVET, INC., ECLIPSE MEDICAL IMAGING, P.C., APEX MEDICAL, P.C., NYC CARE PT, P.C., W J WELLNESS ACUPUNCTURE, P.C., COMPLETE EXPRESS MEDICAL, P.C., FULL PSYCHOLOGY, P.C., AUSTIN WELLNESS RX, INC., METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, NEIGHBORHOOD PHYSICAL THERAPY, P.C., PROSPECT CHIROPRACTIC, PLLC, BV PHYSICAL THERAPY, P.C., NEW AGE MEDICAL, P.C., GYSAKA SERVICES, INC., VINCENT S. DOWLING, M.D., BIG APPLE MEDICAL GROUP CORP., DSH PHYS.ICAL THERAPY SERVICES, P.C., LENCO DIAGNOSTIC LABORATORIES, INC., BERGENFIELD SURGICAL CENTER, LLC, PMR MEDICAL, P.C., ERF PHYSICAL THERAPY, P.C., PREMIER ANESTHESIA ASSOCIATES, PA, SCOB, LLC, EAST COAST MEDICAL CARE, P.C., JOHN STREET PHARMACY, LLC, HP MEDICAL CARE, P.C., MICHELE GLISPY, LAC., MORI FOWLERIDLETT, LERONE IDLETT, TOPLAB, ADVANCED COMPREHENSIVE LABORATORY, LLC D/B/A TOPLAB, Defendant.
Unpublished Opinion
MOTION DATE 03/17/2023
DECISION + ORDER ON MOTION
LESLIE A. STROTH, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130 were read on this motion to/for JUDGMENT - SUMMARY.
Plaintiff commenced this action seeking a declaratory judgment that it owes no duty to pay the claims of the defendants seeking to collect no fault benefits on behalf of Mori Fowler-Idlett and Lerone Idlett (together, the insured) with respect to two collisions - one on August 19, 2020, and the other on September 7, 2020.
By notice of motion, plaintiff moves for an order granting it summary judgment against the following defendants: Full Psychology, P.C.; Metro Pain Specialists Professional Corporation, Neighborhood Physical Therapy, P.C.; Prospect Chiropractic, P.C.; Gysaka Services Inc.; Big Apple Medical Group Corp.; ERF Physical Therapy, P.C.; Premier Anethesia Associates, PA, SCOB, LLC; East Coast Medical Care, P.C.; and Michele Glispy, LAC (together, answering defendants).
Plaintiff argues that for both dates of loss, the insured violated the no fault regulations by materially misrepresenting their residence location and the primary garage location of the insured vehicle when the policy was procured. Specifically, plaintiff asserts that the insured misrepresented that they lived and garaged the subject vehicle in Buffalo, New York, while actually primarily residing and garaging the vehicle in Queens, New York.
Although defendants Full Psychology, P.C.; Metro Pain Specialists Professional Corporation, Big Apple Medical Group Corp.; ERF Physical Therapy, P.C. and Michele Glispy, LAC (together, opposing defendants) collectively attempted to file an opposition to the motion,- such opposition was incorrectly filed and is not considered.
Nevertheless, the Court notes that, even if it were to consider opposing defendants' opposition, it would be insufficient. Opposing counsel's affirmation, coming from an individual without personal knowledge, has no probative value. In any event, counsel's affirmation creates no material issue of fact for trial. See GTF Marketing Inc. v Colonial Aluminum Sales, Inc., 66 N.Y.2d 965, 968 (1985). Further, the exhibits submitted by counsel, which constitute caselaw and discovery demands, do not remedy the defect.
It is a well-established principle that the "function of summary judgment is issue finding, not issue determination." Assaf v Ropog Cab Corp., 153 A.D.2d 520 (1st Dept 1989), quoting Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). As such, the proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. See Alvarez v Prospect Hospital, 68 N.Y.2d 320 (1986); see also Winegrad v New York University Medical Center, 64 N.Y.2d 851 (1985). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 (1986); citing Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980).
In the context of no fault, insurers may assert material misrepresentations in the procurement of the policy as a defense against a party involved in the misrepresentation in the policy's procurement. See Matter of Ins. Co. of N. Am. v Kaplun, 274 A.D.2d 293, 298 (2d Dept 2000). No misrepresentation shall avoid any contract of insurance or defeat recovery thereunder unless such misrepresentation was material. See Insurance Law § 3105 (b). A misrepresentation is material if knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract. See Piller v Otsego Mut. Fire Ins. Co., 164 A.D.3d 534, 536 (2d Dept 2018). Misrepresentation of an insured's address to procure automobile insurance is material. See Williams v Janvier, 176 A.D.3d 1139, 1142 (2d Dept 2019).
The subject policy was issued upon the representation that the insured resided at the vehicle was to be garaged at 80 Eckhert Street, Buffalo, New York 14207. In support of its motion, plaintiff submits an affidavit of Carolyn Upshaw-Ellis, a claims specialist for the plaintiffs, that establishes that the policy address was in Buffalo, New York. In their examinations under oath, the insureds admitted that, at the time they procured the policy, they resided at a Queens, New York address and have only ever garaged the insured vehicle in Queens. Plaintiff also submits the affidavit of Lee Bottari, an employee in the plaintiffs underwriting department, who states that plaintiff would not have issued the subject policy to the insureds under the same terms or conditions had it been aware that the insured's vehicle was being garaged in Queens, New York as opposed to the address in Buffalo, New York.
As their misrepresentations represent a violation of the no-fault law and its regulations, plaintiff establishes that defendants are not entitled to no fault benefits for the purported accidents on August 19, 2020, and the other on September 7, 2020. See Maria S. Masigla, P.T. v Omni Indem. Co., 64 Mise 3d 147(A) (App Term, 2d Dept, 2d 11th and 13th Jud Dists 2019) (provider not entitled to be paid no-fault benefits as insured misrepresented insurance policy address). The Court notes that plaintiff will leave the policy active for any innocent third parties to collect benefits from it, as permitted under the no-fault regulations. Given plaintiff's entitlement to a default judgment, the Court need not reach its arguments in the alternative seeking the same relief.
Accordingly, it is hereby
ORDERED, that plaintiffs motion for summary judgment against Full Psychology, P.C.; Metro Pain Specialists Professional Corporation, Neighborhood Physical Therapy, P.C.; Prospect Chiropractic, P.C.; Gysaka Services Inc.; Big Apple Medical Group Corp.; ERF Physical Therapy, P.C.; Premier Anethesia Associates, PA, SCOB, LLC; East Coast Medical Care, P.C.; and Michele Glispy, LAC is granted; and it is further
ORDERED that, within 30 days of the date of this order, plaintiff is directed to submit a proposed order and judgment in accordance with this decision via NYSCEF with a courtesy copy e-mailed to riwohl@nycourts.gov. and sfc-part12-clerk@nvcourts.gov.
The foregoing constitutes the decision and order of the Court.