ARBITRATION AWARD. John Gallagher, Esq. from The Law Offices of John Gallagher, PLLC participated for the Applicant

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1 American Arbitration Association New York No-Fault Arbitration Tribunal In the Matter of the Arbitration between: Helpful Medical Supply Corp (Applicant) - and - Progressive Casualty Insurance Company (Respondent) AAA Case No Applicant's File No Insurer's Claim File No NAIC No ARBITRATION AWARD I, Kate Cifarelli, the undersigned arbitrator, designated by the American Arbitration Association pursuant to the Rules for New York State No-Fault Arbitration, adopted pursuant to regulations promulgated by the Superintendent of Insurance, having been duly sworn, and having heard the proofs and allegations of the parties make the following AWARD: Injured Person(s) hereinafter referred to as: Assignor Hearing(s) held on 10/18/2021 Declared closed by the arbitrator on 10/18/2021 John Gallagher, Esq. from The Law Offices of John Gallagher, PLLC participated for the Applicant Christa Varone from McCormack, Mattei & Holler participated for the Respondent The amount claimed in the Arbitration Request, $ 1,609.12, was NOT AMENDED at the oral hearing. Stipulations WERE NOT made by the parties regarding the issues to be determined. Summary of Issues in Dispute The Assignor, TM, was a male driver involved in a motor vehicle accident on 1/02/20. Applicant is making a claim for reimbursement for durable medical equipment provided on 1/10/20. Respondent denied the bill alleging material misrepresentation about his residency and garaging of his vehicle at the time that the policy was procured. 4. Findings, Conclusions, and Basis Therefor Page 1/6

2 Respondent issued a denial alleging that the Assignor is not an eligible injured party as he violated the policy regarding misrepresentation that is a condition precedent for coverage to be in effect. Respondent provides the following: "Coverage has been denied based on (1) misrepresentation in the obtaining of a New Jersey policy of automobile insurance through Progressive and (2) violation of policy terms and conditions. The loss in this matter occurred in New York on January 2, Claims were submitted under the NJ Policy which [TM] purchased 11/13/19 indicating he resided and primarily garaged his vehicle at 631 Walton Ave, Beverly, NJ. The application provides: 'I understand that this policy may be rescinded and declared void if this application contains any false information or if any information that would alter the Company's exposure is omitted or misrepresented.' Database searches revealed a NY address for [TM] at st Ave, Woodhaven, NY. This file was transferred to the Special Investigation Unit for a thorough investigation. A 'Vehicle Sightings Report' was completed showing the policy vehicle being operated in and around New York - there were no hits to the alleged policy address. [TM] also listed a New York address on his No-Fault application, 3218 Fulton St, Apt 2, Brooklyn, NY. [TM] confirmed he had another accident a day prior on 01/01/2020 where he provided a statement confirming he was living with his father in NY at st Ave and only stayed at the New Jersey policy address with his mother from 12/18/19 to 12/21/19. Photos of the loss vehicle show New York plates that match the police report as well as the VIN number on the policy. Prior notices were sent to [TM] advising that the policy would be cancelled if no proof of garaging for the vehicle was received. Additional documents were requested to complete the residency/garaging investigation. Documents requested were bank statements, tax returns, pay stubs, EZ pass records, and a leasing agreement with [TM]'s address. [TM] provided pay stubs showing his address as st Ave, Woodhaven, NY and only New York taxes being withheld. EZ-Pass records also obtained, and the records reflected daily transportation within New York only. Appropriate notices were sent, and the claim was ultimately denied for Misrepresentation - Garaging on 1/20/2020. In sum, as a result of the material misrepresentation of [TM], Progressive is entitled to void coverage." In support of its defense Respondent submitted the underwriter affidavit by Janeen Copic, the SIU affidavit by Nathan Malatin, a copy of the New Jersey policy, police report and recorded transcript as well as the Vehicle Search Report, LexisNexis address search, NF-2 Application for Benefits, earning statements, EZ pass transactions and a photograph of the Assignor's New York State license plate. Page 2/6

3 Ms. Copic, in her affidavit, provides that the Assignor presented that he lived in New Jersey at the time of the policy inception and provides that, had Respondent been aware of the misrepresentation, the policy would not have been issued. Mr. Malatin sets forth a summary of his investigation regarding the New York address connections to the subject accident, address hits, vehicle sightings, NF-2 Application, police report and license plates. There were no hits to the New Jersey. The transcript provides little clarity as to the Assignor's place of residency and/or garaging at the time of the policy inception. The Assignor indicates that he slowly began moving from his father's address in Woodhaven, New York to his mother's address in New Jersey on November 7, 2019, then provided that he moved on December 2, 2019 and then again on December 18, 2019, for three days, until he came back to New York when his mother went to visit her family in Louisiana for the holidays. At the time of the accident TM was back in New York because his mother was still in Louisiana. The only month he paid rent in New Jersey, in cash, was in December, to his mother's sister-in-law. The Insurance Law and the common law of New York both establish that an insurance carrier may rescind and/or void any insurance policy if it can be shown that a material misrepresentation was made at the time of the procurement of the insurance policy. Stracar Medical Services v. Nationwide Mut. Ins. Co., 39 Misc3d 1216(A), NYC Civ.Ct 2013, BW Sportswear, Inc. v. Those Certain Underwriters at Lloyd's of London, 32 Misc.3d 1245(A), , 2 (N.Y. Sup.Ct., N.Y. County, 2011)(Oing, J.) citing Kiss Construction N.Y. Inc. v. Rutgers Casualty Ins. Co., 61 A.D.3d 412, 877 N.Y.S.2d 253 (1st Dept., 2009); NY Ins. Law Misrepresentation is deemed material when the insurance carrier demonstrates that it would not have issued the particular policy if the facts had been disclosed by the insured. New Millennium Psych v Commerce Insurance Co., 2011 NY Slip Op 52286(U). In order to establish its affirmative defense of fraudulent procurement of a policy of insurance, the insurer must establish by clear and convincing evidence that the claimant obtained the insurance policy with "material misrepresentations" on the insurance application. The insurer must show that the assured was acting with a "willful intent to defraud" rather than having made "a near mistake or oversight" when filling out the application Sun Insurance Company v. Hercules Securities Unlimited, 605 NYS2d 767 (2d Dept 1993). A health care provider cannot receive No-Fault benefits as an assignee of a person who fraudulently misrepresented her residence as being in New Jersey. MZ Medical Care, P.C. v. Selective Ins. Co. of America, 23 Misc.3d 1134(A), 889 N.Y.S.2d 506 (Table), 2009 N.Y. Slip Op (U), 2009 WL (Civ. Ct. Kings Co., Genine D. Edwards, J., June 3, 2009). Page 3/6

4 Applicant argued that Respondent could not meet its burden as it appears that the Assignor was living in New Jersey at the time of policy inception and therefore there was no misrepresentation. I am not persuaded by this argument. The policy clearly provides the New Jersey address with the garaging zip code of and to suggest that the Assignor just happened to be physically located in New Jersey when he applied for the policy is not enough to establish residency or garaging. The standard for determining residency for purposes of insurance coverage requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain; the mere intention to reside at certain premises is not sufficient. Cliffside Park Imaging v. Preferred Mutual Ins. Co., 36 Misc.3d 155(A), 960 N.Y.S.2d 49 (Table), 2012 N.Y. Slip Op (U), 2012 WL (App. Term 1st Dept. Sept. 11, 2012). Respondent met its burden. Applicant's claim is DENIED. The case was decided on the submissions of the Parties as contained in the ADR Center maintained by the American Arbitration Association and the oral arguments of the parties' representatives. There were no witnesses. I reviewed the documents contained in the ADR Center for both parties and make my decision in reliance thereon. Any further issues raised in the submissions of the Parties as contained in the ADR Center maintained by the American Arbitration Association are held to be moot and/or waived insofar as not raised at the time of the hearing. 5. Optional imposition of administrative costs on Applicant. Applicable for arbitration requests filed on and after March 1, I do NOT impose the administrative costs of arbitration to the applicant, in the amount established for the current calendar year by the Designated Organization. 6. I find as follows with regard to the policy issues before me: The policy was not in force on the date of the accident The applicant was excluded under policy conditions or exclusions The applicant violated policy conditions, resulting in exclusion from coverage The applicant was not an "eligible injured person" The conditions for MVAIC eligibility were not met The injured person was not a "qualified person" (under the MVAIC) The applicant's injuries didn't arise out of the "use or operation" of a motor vehicle The respondent is not subject to the jurisdiction of the New York No-Fault arbitration forum Page 4/6

5 Accordingly, the claim is DENIED in its entirety This award is in full settlement of all no-fault benefit claims submitted to this arbitrator. State of New York SS : County of Nassau I, Kate Cifarelli, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award. 10/21/2021 (Dated) Kate Cifarelli IMPORTANT NOTICE This award is payable within 30 calendar days of the date of transmittal of award to parties. This award is final and binding unless modified or vacated by a master arbitrator. Insurance Department Regulation No. 68 (11 NYCRR ) contains time limits and grounds upon which this award may be appealed to a master arbitrator. An appeal to a master arbitrator must be made within 21 days after the mailing of this award. All insurers have copies of the regulation. Applicants may obtain a copy from the Insurance Department. Page 5/6

6 ELECTRONIC SIGNATURE Document Name: Final Award Form Unique Modria Document ID: 15eba1b bce0a839bee6beb8 Electronically Signed Your name: Kate Cifarelli Signed on: 10/21/2021 Page 6/6

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