Key Takeaway
Veksler denied the insurer summary judgment for missing materiality proof. The opinion made no finding of withheld files or an assigned-risk exception.
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.
Ameriprise had not proved that it would have refused the policy with a truthful residence address. That was the defect in Veksler v Ameriprise, 2018 NY Slip Op 50741(U). The Appellate Term reversed dismissal and denied its motion.
Still current (September 2026): Alignment Chiropractic v Travelers (2020) repeats the Fatmir documentation standard used in Veksler; neither decision creates the assigned-risk exception discussed in the original commentary.
Last reviewed: September 2026.
What the court found missing
The May 18, 2018 decision applied Fatmir. To establish materiality as a matter of law, an insurer needs documentation connecting its underwriting practices for similar risks to its decision whether to issue the policy. The examples include manuals, bulletins and rules.
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Ameriprise did not establish that connection on this record. The court did not award the provider summary judgment. It removed the dismissal that the insurer had obtained below.
What the opinion does not establish
Veksler does not say that Ameriprise deliberately withheld an underwriting file. It also does not identify an assigned-risk policy or decide what evidence would suffice under a state-set rating arrangement. Those assertions in the old commentary should not be attributed to the court.
Section 3105(b)(1) and (c) provide the materiality and similar-risk inquiries. A false residence and a different rate are facts to examine; neither substitutes for the showing required by the governing law. The separate denial-timing question also remains: Prompt Medical (2026) confirms that procurement misrepresentation must be asserted through a timely denial in the claim setting it addressed.
Jason’s June 2018 reaction
Jason’s comments about the insurer’s motives and assigned-risk practice were his own assessment. The opinion did not find deliberate withholding, discuss an assigned-risk policy or create an exception to the materiality showing:
Clearly, Ameriprise thought it could avoid handing over the underwriting file. For non AIP cases, this is fatal. For AIP cases, I have learned that the rates are determined on a pre-set State schedule based upon residence. Thus, you do not see the “underwriting file” play much of a role on those types of cases. I suspect Ameriprise knew better, and almost slipped a fast one by the Courts.
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
- Joseph (2016): applying Fatmir to a homeowners policy
- Maxford (2018): materiality and a prior default order
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
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What is a material misrepresentation in insurance?
Section 3105(b)(1) treats a misrepresentation as material when knowing the true facts would have led the insurer to refuse the contract. Veksler found the insurer had not established that proposition on its motion.
How does an insurer prove a misrepresentation was material?
Veksler applied Fatmir's requirement for documentation of underwriting practices for similar risks. Manuals, bulletins and rules are examples. The opinion does not create an assigned-risk exception or require one document with a fixed title.
Can a material misrepresentation void a no-fault claim?
A procurement misrepresentation can support a defense when the necessary proof and timely-denial requirements are met. Veksler denied the insurer's motion for insufficient materiality proof; it did not declare the policy void or grant the provider judgment.
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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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