Key Takeaway
Maxford rejected an insurer's materiality showing and reliance on a prior default against the assignor. The provider's claim remained set for a limited trial.
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.
The provider’s claim remained set for trial after Maxford v Erie, 2018 NY Slip Op 51057(U). Erie had not established materiality. Its earlier default order against the assignor did not bind this provider on the record before the court.
Historical note: Maxford v Erie, 2018 NY Slip Op 51057(U), left a limited trial in place; Alignment (2020) later applied the same materiality test, while the effect of another action requires a separate party-and-privity analysis.
Last reviewed: September 2026.
The limited trial remained in place
The Civil Court had denied both parties’ summary-judgment motions. It also made findings under CPLR 3212(g): the provider mailed the bill, the bill remained unpaid and the insurer timely denied it. That left the procurement defense for trial.
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On June 29, 2018, the Appellate Term affirmed the order insofar as Erie appealed. Erie offered no sufficient basis to disturb those fixed facts. It also failed to establish that it would not have issued the policy with truthful residence and garaging information, under Fatmir and the November 2016 Renelique decision.
Why the prior default did not decide this claim
Erie relied on an order finding application misrepresentations in a separate action against the assignor. The provider had not been named there. The Appellate Term found no privity binding this provider to that order and rejected collateral estoppel.
That conclusion should not become a rule that every nonparty is immune from the effect of every judgment. Compare the parties, the relationship asserted to bind them and what the earlier proceeding actually decided. Maxford did not adjudicate the insurer’s procurement defense at trial or award the provider payment.
Jason’s July 2018 reaction
Jason viewed the result as consistent with the materiality cases he had been discussing. The court’s separate privity ruling depended on this record:
The second part of the opinion is old news. Actually, so is the first part of the opinion. The Appellate Term has gauged the fraudulent procurement defense under the Ins Law 3105(b) standard for the last 2-3 years,
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
- Veksler (2018): materiality without an assigned-risk exception
- Renelique (March 2016): a factual issue without entitlement to dismissal
- Great Health Care (2014): a procurement defense lost to preclusion
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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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.
If you need legal help with a material misrepresentation - procurement of insurance policy matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
