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.
NYSCEF DOC. NO. 59 

INDEX NO. 655630/2018 

RECEIVED NYSCEF: 05/08/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. DEBRA A. JAMES 

Justice 

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LIBERTY MUTUAL INSURANCE COMPANY, and LM 

GENERAL INSURANCE COMPANY, 

Plaintiff, 

- 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., 

JFL MEDICAL CARE P.C., LEOMAX SUPPLIES INC., 

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. 

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PART 59 

INDEX NO. 655630/2018 

MOTION DATE 11/03/2023 

MOTION SEQ. NO. 003 

DECISION + ORDER ON 

MOTION 

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 

Motion No. 003 

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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 

655630/2018 LIBERTY MUTUAL INSURANCE vs. YOUNG, SELIMA 

Motion No. 003 

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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 

655630/2018 LIBERTY MUTUAL INSURANCE vs. YOUNG, SELIMA 

Motion No. 003 

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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 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED 0 DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

655630/2018 LIBERTY MUTUAL INSURANCE vs. YOUNG, SELIMA 

Motion No. 003 

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20240508163259DJAMES159D8C50D6844D1683598AC130D6018C 

, ~ ,d - } ~ 

DEBRA A. JAMES, J.S.C. 

~ NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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