Renelique v National Liab. & Fire Ins. Co., 2016 NY Slip Op 50254(U)(App. Term 2d Dept. 2016)
“With respect to defendant’s cross motion, “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). No-fault benefits may be denied to an insured where an insurer submits evidence in admissible form showing that the insured had fraudulently procured the insurance policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]; New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Upon the record before us, we find that defendant failed to establish as a matter of law that plaintiff’s assignor had made material misrepresentations in order to obtain insurance at reduced premiums”
The question is what is necessary regarding the type of “material misrepresentations” that are necessary to demonstrate a fraudulent procurement defense. I also do not see any notion that the underwriting handbook has to be presented here, making this different than a 3105 misrepresentation.
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There will be interesting oral arguments coming up soon on A similar issue plus other unique and interesting isSues pertaining to Evidence necessary to establish policy mIsrepresentation, rate evasion and the treatment of euo testimony as ebt testimony and whether cplr applies to the euo testimony.
I know you are looking to have the Ins Law 3105 case law regarding the underwriting manuals to be part of a prima facie case on rate evasion. Curious to see where the law goes on that point. As to the “CPLR” requirements, a certified EUO transcript as it relates to an Assignor is enough. That is a non-issue. As to a complete non-party, i.e., insured or co-assignor, you can make the argument that the mailing of the EUO to the party for changes is required in accordance with the CPLR unless the carrier can obtain admission through the conspiracy or common interest exception to hearsay.