COMPAS MEDICAL, P.C., v. PRAETORIAN INS. CO., No. 2014–2469 Q C.
The assignor materially misrepresented his address to procure a lower insurance premium. The interesting thing here is the standard of proof the Court required. The Court also commented on the mailing of EUO notices:
[D]efendant failed to establish that it had timely mailed letters scheduling plaintiff’s assignor’s examination under oath (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123  ); therefore, defendant failed to demonstrate, as a matter of law, that it had tolled its time to deny those claims on the proffered ground of fraudulent procurement of the insurance policy (see Great Health Care Chiropractic, P.C. v. Hanover Ins. Co., 42 Misc.3d 147[A], 2014 N.Y. Slip Op 50359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ). Moreover, defendant failed to establish as a matter of law that the misrepresentation by plaintiff’s assignor as to his place of residence was material (see Interboro Ins. Co. v. Fatmir, 89 AD3d 993  ). For the foregoing reasons, the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action should have been denied.
If the carrier would have otherwise still sold the insurance policy to the assignor anyway, does that make it immaterial?
With respect to verification:
With respect to the fourth through sixth causes of action, defendant’s claims examiner submitted an affidavit establishing the timely mailing of its verification requests and its follow-up verification requests (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Pomona Med. Diagnostics, P.C. v. Travelers Ins. Co., 31 Misc.3d 127[A], 2011 N.Y. Slip Op 50447[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ). Defendant also demonstrated prima facie that the requested verification information had not been received (see 11 NYCRR 65–3.8[a]; Central Suffolk Hosp. v. New York Cent. Mut. Fire Ins. Co., 24 AD3d 492  ). However, in response to the cross motion, plaintiff’s owner submitted an affidavit which was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant (see Compas Med., P.C. v. Praetorian Ins. Co., 49 Misc.3d 152[A], 2015 N.Y. Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ). Thus, a triable issue of fact exists as to whether causes of action four through six are premature (see id.).