Liberty Mut. Ins. Co. v. Young

Liberty Mut. Ins. Co. v Young 2024 NY Slip Op 31631(U) May 8, 2024 Supreme Court, New York County Docket Number: Index No. 655630/2018 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

INDEX NO. 655630/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/08/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 655630/2018 LIBERTY MUTUAL INSURANCE COMPANY, and LM GENERAL INSURANCE COMPANY, MOTION DATE 11/03/2023 Plaintiff, MOTION SEQ. NO. 003 - V - SELIMA YOUNG, BROOKHAVEN MEMORIAL HOSPITAL MEDICAL CENTER, INC., CLEAR WATER PSYCHOLOGICAL SERVICES P.C., ECLIPSE MEDICAL IMAGING P.C., ENGLEWOOD ORTHOPEDICS GROUP, EMPIRE MEDICAL SERVICES P.C., FRIENDLY ACUPUNCTURE P.C., HET MEDICAL SERVICES, P.C., DECISION + ORDER ON JFL MEDICAL CARE P.C., LEOMAX SUPPLIES INC., MOTION LONGEVITY MEDICAL SUPPLY, INC., MOHAMED ATTYA, NEW YORK WELLNESS PT, P.C., RADIANT HEALTHCARE CHIROPRACTIC DIAGNOSTIC, PC, SATURN MOON ACUPUNCTURE, P.C., and UNITED MEDICAL SERVICES OF LONG ISLAND, PC, Defendants. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 49, 50, 51, 52, 53, 54,55,56,57,58 were read on this motion to/for RENEWAL ORDER Upon the foregoing documents and upon further deliberation following the exemplary oral argument on the papers submitted of both counsel, and herein rescission of the verbal ruling made on the record, which the court stated it would reduce into writing as the appealable paper, and hereby rules otherwise, it is ORDERED that the motion of defendants for leave to renew the summary judgment motion of plaintiffs and the order dated November 3, 2022 (NYSCEF Doc No 052) is denied.

655630/2018 LIBERTY MUTUAL INSURANCE vs. YOUNG, SELIMA Page 1 of4 Motion No. 003

DECISION In this declaratory judgment action, plaintiffs seek a declaration that certain medical provider assignees are not entitled to payment of claims related to their treatment of defendant Selima Young, the injured party assignor (injured party/insured) Plaintiffs previously moved for summary declaratory judgment in their favor (Motion Sequence No 002), which by Decision+ Order dated November 3, 2022 (prior order), this court granted. (NYSCEF Doc. No. 052).

In such prior order, the court found that on her application for automobile insurance, defendant injured party/insured misrepresented her residence as Tennessee, when she actually resided in Brooklyn, New York, as she testified at the Examination Under Oath. In their affidavit in support, the underwriter stated, in pertinent part: "Based on [the Tennessee] address, the premium from the last endorsement on the policy in 2018 was $1,325.00.

* * * Upon discovery of Selima Young's correct address in Brooklyn, New York, the policy was re-rated and the premium increased to $6,431.00."

Defendants now move for renewal of this court's prior order, relying upon the opinion in Liberty Mut. Ins. Co. v Valera, 208 AD3d 1104 (l3t Dept 2022), which decision was issued by the 655630/2018 LIBERTY MUTUAL INSURANCE vs. YOUNG, SELIMA Page 2 of 4 Motion No. 003

Appellate Division, First Department on September 27, 2022, after the papers on the prior motion before this court were fully submitted. In Valera, the intermediate appellate court stated, in pertinent: "The insurers submitted undisputed evidence that the claimant misrepresented her address based on her testimony at the Examination Under Oath (EUO).

However the insurers failed to establish, as a matter of law, that the alleged misrepresentation as to the correct address was a material misrepresentation. The affidavit of the insurers' underwriter was conclusory and not supported by relevant documentary evidence such as underwriting manuals, rules, or bulletins." So too here, plaintiffs did not attach any underwriting manuals, rules, or bulletins to establish prima facie the materiality of the misrepresentation.

However, plaintiffs argue that the motion of defendants to renew is untimely, having been filed more than thirty days after entry of the final judgment, i.e., within the time to appeal such judgment. The E-File docket shows that proof of service of such order with notice of entry was filed on November 4, 2022 (NYSCEF Doc No 48). Defendants, therefore, had until December 5, 2022 to file their motion for renewal, but did not file such motion until almost a year later on November 3, 2023. This court does not agree with defendants that the prior order did not constitute a final judgment, given the word "ADJUDGED" in its decretal paragraph, and that there were no further causes of action to be adjudicated. On

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5/8/2024 DATE DEBRA A. JAMES, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

655630/2018 LIBERTY MUTUAL INSURANCE vs. YOUNG, SELIMA Page4 of 4 Motion No. 003