Maria S. Masigla, P.T. v. Omni Indem. Co.

Freiberg, Peck & Kang, LLP (Yilo J. Kang and Nicole McErlean of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Andrew Borrok, J.), entered November 15, 2017. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,332.48.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment which, after a nonjury trial, awarded plaintiff the principal sum of $3,332.48.

Prior to trial, the parties stipulated that the sole and dispositive issue would be whether plaintiff's assignor had misrepresented her address as being in Pennsylvania, when she in fact lived in Brooklyn, on her application for the insurance policy at issue. Upon a review of the record, we find that defendant established that the assignor did misrepresent her address in obtaining the policy at issue, as the record includes, among other things, the assignor's unequivocal testimony at the beginning of the trial that, while she put a Pennsylvania address on the policy application, she had left Pennsylvania and lived in Brooklyn at that time.

In light of the parties' stipulation, we reach no other issue.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.