The opinion
Liberty Mut. Ins. Co. v Newman
2025 NY Slip Op 30372(U)
January 28, 2025
Supreme Court, New York County
Docket Number: Index No. 655301/2023
Judge: Lyle E. Frank
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
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INDEX NO. 655301/2023
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 01/28/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
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LIBERTY MUTUAL INSURANCE COMPANY, LM
GENERAL INSURANCE COMPANY, MOTION DATE 12/26/2024
Plaintiff, MOTION SEQ. NO. 002
-v-
DESMOND ROY NEWMAN, TRODIS ORLANDO BERRY,
ACTIVE LIFE CHIROPRACTIC PC,AETHER EQUIPMENT
LLC,ANARAFENA MEDICAL PLLC,ANDREW HALL MD
PLLC,ANTRAM INC, APEX DIAGNOSTICS INC,
APTECHKA RX, INC, ATLANTIC MEDICAL &
DIAGNOSTIC, PC,BANAY PHYSICAL THERAPY
PC,BROWN STONE ACUPUNCTURE PC,CITY ORTHO
TRADING INC, COMPASSION MEDICAL CARE PLLC,DR. DECISION + ORDER ON
RIOTTO CHIROPRACTIC, PC,ESCO MEDICAL SUPPLY MOTION
CORP, GLENN H WHITNEY DC PC,GOAL PHYSICAL
THERAPY PC,JASODA DHUPAN, NP, JOHANNE HILARIE,
NP, METROCARE MEDICAL PC,MODERN RX
PHARMACY INC, NEXT GENERATION DIAGNOSTIC
IMAGING PC,RONALD JEGANATHAN, PA, STAR OF NY
CHIROPRACTIC DIAGNOSTIC, PC,U.K. SINHA
PHYSICIAN PC,WASSEF MEDICAL SERVICES PC
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 002) 51, 52, 53, 54, 55,
56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79
were read on this motion to/for JUDGMENT - SUMMARY .
Upon the foregoing documents, plaintiff’s motion is denied.
Background
Liberty Mutual Insurance Company and LM General Insurance Company (collectively,
“Plaintiffs”) are insurance companies under the Liberty Mutual umbrella. They issued a car
insurance policy to Desmond Roy Newman (collectively with Trodis Orlando Berry the
“Individual Defendants”) covering a 2012 Infiniti. There was an accident involving the insured
vehicle in December of 2022, following which the Medical Provider Defendants (all defendants
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except the Individual Defendants) submitted bills pursuant to No-Fault coverage policies.
Plaintiffs filed this underlying action seeking, among other things, a declaration that they are not
obliged to cover any claims related to the accident on the grounds that there were material
misrepresentations regarding the garaging location and ownership of the Infiniti, and non-
cooperation with the claim investigation.
Several parties answered, and there have been several stipulations of discontinuance. The
present motion was brought by Plaintiffs, who are seeking summary judgment in their favor
against the Answering Defendants.1 The motion has been opposed by the Provider Defendants
and defendant Anarafena Medical PLLC (“Anarafena”).2
Standard of Review
Under CPLR § 3212, a party may move for summary judgment and the motion “shall be
granted if, upon all the papers and proof submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law in directing judgment in favor of
any party.” CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to
judgment as a matter of law, the burden then shifts to the opponent to “produce evidentiary proof
in admissible form sufficient to establish the existence of material issues of fact which require a
trial of the action.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016).
The facts must be viewed in the light most favorable to the non-moving party, but conclusory
statements are insufficient to defeat summary judgment. Id.
Discussion
1
These are defendants Anarafena Medical PLLC; Antram Inc.; Apex Diagnostics Inc.; Atlantic Medical &
Diagnostic PC; City Ortho Trading Inc.; Goal Physical Therapy PC; Jasoda Dhupan NP; Johanne Hilaire NP; Next
Generation Diagnostic Imaging PC; Ronald Jeganathan PA.
2
These are defendants Apex Diagnostics Inc.; Goal Physical Therapy, P.C.; Jasoda Dhupan, N.P.; Johanne Hilarie,
N.P.; Next Generation Diagnostic Imaging, P.C.; and Ronald Jeganathan, P.A.
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Plaintiffs argue that due to allegedly material misrepresentations by the Individual
Defendants constitutes grounds for voiding the policy and therefore Plaintiffs have no
requirement to provide coverage. In support of their motion, Plaintiffs have submitted
documentation including affidavits from the claim investigator, an underwriter, and the claims
department’s Team Manager, as well as the EUO transcripts for the Individual Defendants. The
Provider Defendants oppose and argue that Plaintiffs have not established a prima facie case of
entitlement to summary judgment based on the alleged misrepresentations. They also contend
that summary judgment would be premature, as Plaintiffs have not produced discovery related to
their underwriting practices. Anarafena has also opposed the motion, arguing that there are
material issues of fact going to intent to defraud with the alleged misrepresentations.
The Alleged Misrepresentations Here Were Material According to First Department Precedent
The Provider Defendants point to New York Insurance Law § 3105(b)(1), which states
that a misrepresentation must be material in order to void a policy, and that “[n]o
misrepresentation shall be deemed material unless knowledge by the insurer of the facts
misrepresented would have led to a refusal by the insurer to make such contract.” It is not
disputed that there were likely misrepresentations made regarding the ownership and garaging
location of the vehicle in question, although Defendant Anarafena disputes the intentional nature
of any such misrepresentation. The initial issue here is whether it is required by law that such
misrepresentations would have resulted in Plaintiffs’ full denial of a policy, or whether it is
sufficient for a misrepresentation to be material if a correct statement of the facts would have led
to issuance of a policy for a higher premium rate.
The Provider Defendants cite to a series of Second Department cases for the proposition
that to be material, a misrepresentation must have meant that otherwise, the policy would not
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have issued at all. See, e.g., Interboro Ins. Co. v. Fatmir, 89 A.D.3d 993, 994 (2nd Dept. 2011).
But in the First Department, a misrepresentation that would have otherwise resulted in a policy
with a higher premium rate is sufficient to establish legal materiality. See, e.g., Starr Indem. &
Liab. Co. v. Monte Carlo, LLC, 190 AD.3d 441, 441-42 (1st Dept. 2021)(holding that
misrepresentation is material if “either the insurer would not have issued the policy or would
have charged a higher premium”). By the plain language of Starr, the fact that a
misrepresentation would not have resulted in an outright denial of the policy had the correct facts
been known is not enough to make the misrepresentation immaterial. It is sufficient as a matter
of law that the policy would have been issued at a higher premium rate absent the
misrepresentation.
Plaintiffs Are Required to Submit Underwriting Materials in Order to Sustain a Summary
Judgment Motion
The Provider Defendants also argue that a failure to submit underwriting materials would
here bar Plaintiffs from establishing prima facie entitlement to their claims. Plaintiffs contend
that the sworn affidavit from their underwriter is sufficient and claim that the Provider
Defendants never demanded discovery on underwriting practices. Regardless of whether or not a
defendant in this case has requested discovery regarding underwriting practices, in the First
Department a plaintiff in a case such as this must submit documentation of underwriting
practices such as “manuals, rules, or bulletins” even with an underwriter’s affidavit. Liberty Mut.
Ins. Co. v. Valera, 208 A.D.3d 1104, 1104 (1st Dept. 2022); see also Alexi Home Design, Inc. v.
Union Mut. Fire Ins. Co., 223 A.D.3d 449, 450 (1st Dept. 2024)(holding that “materiality can be
established by an affidavit from an underwriter and documentary evidence concerning its
underwriting practices showing that the same policy would not have been issued if the correct
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information had been provided”); but see Certain Underwriters at Lloyds London v. Martin, 226
A.D.3d 559, 559 (1st Dept. 2024)(holding that “documentary evidence of its underwriting
practices” not required when there was a statement that there were no guidelines that would have
covered an attempt to engage in Medicare fraud). Because here Plaintiffs have not submitted
documentary evidence of their underwriting practices, they have not met their burden on a
motion for summary judgment at this time. Accordingly, it is hereby
ADJUDGED that the plaintiff’s motion is denied.
1/28/2025
DATE LYLE E. FRANK, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ □
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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