Key Takeaway
SS Medical found a false military-status statement but insufficient materiality proof. Section 3105 is not limited to property policies; rescission is separate.
This article is part of our ongoing material misrepresentation - procurement of insurance policy coverage, with 24 published articles analyzing material misrepresentation - procurement of insurance policy issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Section 3105 is not limited to property insurance. In SS Medical Care v USAA, 2015 NY Slip Op 51094(U), the Civil Court found a false military-status statement but insufficient proof of materiality. The provider won after trial. The original criticism below should not be read as the governing rule.
Legal Update (September 2026): Alignment Chiropractic v Travelers (2020) applies Fatmir’s materiality analysis in a no-fault action; §3105 does not contain the property-only limit asserted in this note’s original criticism.
Last reviewed: September 2026.
Falsity was proved; materiality was not
The parties stipulated to timely mailing of the bills and denials. The insurer’s litigation manager supplied evidence that the assignor had falsely claimed active Navy membership when applying. But on cross-examination she acknowledged that she was not involved in underwriting and did not know its governing procedures.
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The court found no evidence establishing that the insurer would have refused this policy had the truth been known. It awarded the provider the amount sought, statutory interest and attorney’s fees on July 17, 2015. This was a Civil Court trial decision, not an appellate opinion.
A claim defense is not cancellation of the policy
USAA argued that it could deny this assignor’s first-party benefits while coverage remained available to third parties. Its position was that the policy had not been terminated or treated as void. The case therefore should not be described as an insurer obtaining retroactive rescission.
The later no-fault decision in Alignment applies Fatmir, including its underwriting-documentation requirement. The statutory materiality inquiry and restrictions on cancelling an auto policy address different questions. Calling the defense fraudulent procurement does not bypass materiality, and the record supplies no basis for the old statement that SS Medical could not survive appellate review.
Jason’s original 2015 objection
The archive originally objected to applying section 3105 in this case. The following is retained as historical criticism, including its wording; its claim that section 3105 does not apply is not the current legal conclusion:
Want to cancel a policy that insures against proper damage? Material misrepresentation will do it. A policy that of insurance that insures against death or personal injury? 3105 will not apply and all cancellations will be prospective at best.
In this case, the Civil Court found that the law that has developed under 3105 applied to a policy of insurance insuring against personal injury or death. This was a mistake. Second, the Court failed to apply a fraudulent procurement theory to the facts of this case; rather, the Court applied a faulty 3105 paradigm.
This is all nonsense.
Section 3105 is not confined to property-damage policies. Later Appellate Term decisions apply its materiality analysis to no-fault procurement defenses. Limits on retroactive cancellation do not remove that analysis from a claim defense.
Connect to the Encyclopedia
Start with the fraudulent procurement and material misrepresentation hub, then compare these records:
- Alignment (2020): ownership, use and the underwriting record
- Renelique (November 2016): materiality and competing motion burdens
- Compas (2016): separate claims, tolling and verification responses
- Great Health Care (2014): a procurement defense lost to preclusion
- Universal Health (2014): proof of a Florida rescission
For review of a particular no-fault dispute, contact the firm with the policy, application and claim record.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Material Misrepresentation in Insurance Policy Procurement
An insurer may void a policy ab initio if the insured made a material misrepresentation during the application process. Under New York Insurance Law 3105, the misrepresentation must be material to the risk — meaning the insurer would not have issued the policy or would have charged a higher premium had it known the truth. In no-fault practice, misrepresentation defenses can eliminate coverage entirely. These articles analyze the legal standards, the burden of proof on the insurer, and the case law governing rescission based on misrepresentation.
24 published articles in Material misrepresentation - procurement of insurance policy
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Dec 15, 2016Frequently Asked Questions
Common Questions About This Topic
4 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
Does Insurance Law Section 3105 apply to New York no-fault insurance policies?
Yes, section 3105's materiality analysis has been applied to no-fault procurement defenses, including through Fatmir in Alignment. The statute is not limited to property-damage policies. Whether a claim defense succeeds is separate from whether the policy can be cancelled.
What is the correct legal theory for rescinding a New York auto insurance policy based on misrepresentation?
A material procurement misrepresentation may support a defense to a claim, but it does not automatically permit retroactive cancellation of a New York auto policy. SS Medical addressed a first-party defense while the insurer said third-party coverage remained in place.
Can an auto insurance policy be rescinded retroactively in New York for misrepresentation?
The decisions distinguish New York's restrictions on retroactive auto-policy cancellation from defenses to a particular claimant's recovery. SS Medical did not decide a completed rescission; the insurer said the policy remained in effect for third parties.
What documentation must an insurer provide to establish materiality of misrepresentation in New York?
Fatmir and Alignment require documentation of underwriting practices for similar risks showing that the insurer would not have issued the policy with truthful information. In SS Medical, proof of a false application answer did not establish that materiality question.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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