ALIGNMENT CHIROPRACTIC v. TRAVELERS HOME AND MARINE INS CO (2020)

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much an order of the Civil Court as denied defendant's motion which had sought summary judgment dismissing the complaint upon the ground that plaintiff's assignor had procured the insurance policy in question by making a material misrepresentation as to the ownership and use of the vehicle in question.

“A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented. To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (Interboro Ins. Co. v. Fatmir, 89 A.D.3d 993, 994 [2011] [internal quotation marks and citations omitted] ).

Upon a review of the record, we find that defendant failed to establish as a matter of law that it would not have issued the policy in question. Consequently, defendant did not demonstrate, prima facie, that the misrepresentation by plaintiff's assignor was material (see Commitment Care, P.T., P.C. v. Travelers Home & Mar. Ins. Co., 64 Misc. 3d 136[A], 2019 N.Y. Slip Op. 51157[U] [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists 2019] ).

Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.