Rescission not upheldJanuary 24, 2017

Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co., 2017 NY Slip Op 50029(U)(App. Term 2d Dept. 2017)

“Inasmuch as defendant’s cross motion papers failed to demonstrate that a rescission notice was sent to the insured, or that defendant had returned, or tendered, all premiums paid to the insured within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant failed to show, prima facie, that it had voided the policy ab initio pursuant to Florida law (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire [*2]and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint was properly denied.”

This is the interesting issue we find in these void ab initio jurisdictions.  Was the premium returned within a reasonable time after the discovery of the fraud?