NR Acupuncture, P.C. v Ocean Harbor Cas. Ins. Co., 2019 NY Slip Op 51892(U)(App. Term 2d Dept. 2019)
“It is uncontroverted that the vehicle involved in the accident was insured by defendant under a Florida automobile insurance policy. According to the affidavit submitted by an employee of defendant’s managing agent, an investigation conducted after the accident revealed that, at the time the policyholder applied for automobile insurance, she did not reside at the Florida address listed on her application, and that the insured vehicle was not garaged at that Florida address. Thereafter, defendant purportedly rescinded the policy ab initio, pursuant to [*2]Florida Statutes Annotated § 627.409, which permits the retroactive rescission of an insurance policy.
In order to demonstrate that an automobile insurance policy has been properly rescinded ab initio in accordance with Florida law, an insurer must demonstrate that it gave notice of the rescission to the insured and that it returned, or tendered, all paid premiums within a reasonable time after the discovery of the grounds for avoiding the policy (see Fla Stat Ann § 627.728 [5]; Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). Here, defendant’s motion papers failed to demonstrate that it had provided the insured with notice of the rescission, and defendant admitted that it had not returned all of the paid premiums to the insured. “
