Monroe v Omni Indem. Co., 2020 NY Slip Op 50731(U)(App. Term 2d Dept. 2020)
“Contrary to plaintiff’s contention, the affidavit of defendant’s litigation representative was sufficient to demonstrate that defendant had mailed the rescission letter and refund check to the insured/assignor. As defendant set forth facts showing that it had rescinded the insurance policy ab initio in accordance with Pennsylvania law, defendant established its prima facie entitlement to summary judgment dismissing the complaint, which showing plaintiff failed to rebut (see Healthway Med. Care, P.C. v Infinity Group, 54 Misc 3d 132[A], 2017 NY Slip Op 50042[U]). Plaintiff’s contention that defendant had to prove that a material false statement had been made by the insured lacks merit. This court has “held that an insurer need not establish the underlying reasons for the retroactive rescission of the policy, but rather has the burden of establishing that it complied with the law of the sister state which permits retroactive rescission“
My assumption above is that is the law of the sister state requires the carrier to prove that they had the right to rescind the policy, then that inquiry would be riper for determination by our court?
In fact, I think it is a valid assumption:
Parisien v Omni Indem. Co., 2020 NY Slip Op 50729(U)(App. Term 2d Dept. 2020)
“The Pennsylvania Supreme Court has held, however, that while an automobile insurance policy may be retroactively rescinded as to an insured who has made a material misrepresentation, the policy may not be retroactively rescinded [*2]with respect to third parties “who are innocent of trickery, and injured through no fault of their own”:
