### 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

Op30001(U), are republished from various New York State and local governmentsources, including the New

York State Unified Court System's eCourtsService. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 59 INDEX NO. 655630/2018 RECEIVED NYSCEF: 05/08/2024 

### SUPREME COURTOFTHE STATEOF NEWYORK NEWYORKCOUNTY PRESENT: HON. DEBRAA. JAMES Justice

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LIBERTY MUTUAL INSURANCECOMPANY, and LM GENERAL INSURANCE COMPANY, Plaintiff,

- V - SELIMAYOUNG, BROOKHAVEN MEMORIAL HOSPITAL MEDICAL CENTER, INC., CLEARWATER PSYCHOLOGICAL SERVICES P.C., ECLIPSE MEDICAL IMAGING P.C., ENGLEWOODORTHOPEDICS GROUP, EMPIRE MEDICAL SERVICES P.C., FRIENDLY ACUPUNCTURE P.C., HETMEDICAL SERVICES, P.C., JFL MEDICAL CARE P.C., LEOMAXSUPPLIES INC., LONGEVITYMEDICAL SUPPLY, INC., MOHAMEDATTYA, NEWYORKWELLNESS PT, P.C., RADIANT HEALTHCARECHIROPRACTIC DIAGNOSTIC, PC, SATURN MOONACUPUNCTURE, P.C., and UNITED MEDICAL SERVICESOF LONG ISLAND, PC, Defendants.

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INDEXNO. 655630/2018 MOTION DATE 11/03/2023 MOTION SEQ. NO. 003

DECISION+ORDERON MOTION

Thefollowing e-filed documents, listed by NYSCEF document number (Motion 003) 49, 50, 51, 52, 53, 54,55,56,57,58 were read onthis motionto/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.

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### [* 1]NYSCEF DOC. NO. 59 INDEX NO. 655630/2018 RECEIVED NYSCEF: 05/08/2024

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. 

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

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

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### [* 2]NYSCEF DOC. NO. 59 INDEX NO. 655630/2018 RECEIVED NYSCEF: 05/08/2024


### 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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### [* 3]NYSCEF DOC. NO. 59 INDEX NO. 655630/2018 RECEIVED NYSCEF: 05/08/2024

that basis, the court must deny defendants' motion to renew, as untimely. See Wilmington Trust National Association as Trustee to Citibank, N.A. v Fife, 212 AD3d 550 (1 st Dept 2023) Defendants proffer no circumstances set forth in CPLR 5015 that justify their delay. See Opalinski v City of New York, 205 AD3d 917, 919 (2d Dept 2022).

5/8/2024

DATE CHECKONE:
APPLICATION: CHECKIFAPPROPRIATE: CASE DISPOSED GRANTED 

# 0 DENIED SETTLEORDER INCLUDESTRANSFER/REASSIGN

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- }**~** 20240508163259DJAMES159D8C50D6844D1683598AC130D6018C
DEBRAA. JAMES,J.S.C.

# ~ NON-FINAL DISPOSITION GRANTEDIN PART SUBMITORDER FIDUCIARYAPPOINTMENT

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