Mid Atl. Med. P.C. v Victoria Select Ins. Co.

[*1] Mid Atl. Med. P.C. v Victoria Select Ins. Co. 2006 NY Slip Op 52039(U) [13 Misc 3d 1228(A)] Decided on October 24, 2006 Civil Court Of The City Of New York, Kings County Thomas, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 24, 2006
Civil Court of the City of New York, Kings County

Mid Atlantic Medical P.C. a/a/o REGINALD SMALLS, KEVIN JOHNSON, Plaintiff,

against

Victoria Select Ins. Co., Defendant.



112247/04

Delores J. Thomas, J.

Upon the foregoing cited papers, the Decision/Order on this motion and cross-motion is as follows:

In this action brought by a health care provider to recover first-party no-fault benefits for services rendered to its assignors, Reginald Smalls and Kevin Johnson, plaintiff moves for an order granting summary judgment in its favor in the sum of $3,673.07 as to each assignor plus statutory interest and attorney's fees. Defendant cross-moves for an order pursuant to CPLR 3211 (a) (5) dismissing the action.

To establish a prima facie entitlement to summary judgment, plaintiff must demonstrate that it submitted a proper proof of claim setting forth the fact and amount of losses sustained and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept]). The court finds plaintiff has established its prima facie entitlement to summary judgment.

Defendant contends the issue of timeliness of payment is immaterial in this dispute since [*2]plaintiff treated injuries did not arise from a covered accident. On April 4, 2005, Hon. L.A. Harris, Jr., of the Circuit Court for the County of Henrico, Virginia, granted defendant's Petition for a Declaratory Judgment awarding it a default judgment and retroactively rescinding an insurance policy it had issued to Anthony Lindo (see Exhibit A annexed to cross-motion). Defendant states that it sought cancellation of the policy after it discovered Lindo made material misrepresentations on the insurance application. Plaintiff seeks to recover benefits under Lindo's policy. Based on the retroactive cancellation of the policy, defendant asserts the thirty-day rule does not apply and the lack of coverage defense survives (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195). Therefore, defendant argues it is entitled to an order granting its cross-motion dismissing the complaint.

Plaintiff counters that defendant admits coverage existed at the time the assignments were made in July, 2004. It was not until November, 2004 that the policy was rescinded. Furthermore, plaintiff argues defendant has failed to lay a foundation for the documents submitted in support of its position. Plaintiff states that defendant has failed to attach an affidavit by someone with personal knowledge who can "corroborate and lay a foundation for the documents." Moreover, plaintiff argues New York law, which does not provide for retroactive cancellation of an insurance policy, should apply as it has "a greater interest in protecting its innocent victims against motorists covered by an out of state insurance policy."

Plaintiff's contention that defendant's cross-motion should not be granted because defendant has failed to lay a proper foundation for its evidence is unpersuasive. Defendant's counsel indicates in her affirmation in support that she possesses knowledge of the facts based on a review of the files and that the documents submitted are true and correct copies. Defendant has submitted sufficient relevant documentary evidence to warrant consideration of its cross-motion.

Therefore, determination of the motion and cross-motion rests in a resolution of the conflict of law dispute between the two jurisdictions. Defendant claims that it properly canceled the policy retroactively under Virginia law. The policy was issued in Virginia based on factors which included that the insured was a Virginia resident, that the vehicle was registered in Virginia, and that it would be garaged in Virginia.

"Where there is a conflict of law relating to an insurance policy, the conflict must be resolved by application of the conflict of law rules relevant to contracts." (Integon Insurance Company v Garcia, 281 AD2d 480.) Generally, courts now apply the "center of gravity" or "grouping of contacts" inquiry to determine which state has the most significant contacts to the dispute. In Eagle Insurance Co. v Singletary, et al. (279 AD2d 56 [2d Dept]), an action with a similar fact pattern to the instant action, defendant Singletary was injured in New York by a vehicle owned by a Mr. Suleiman who was insured by Integon Insurance Company. Integon did not dispute that there was coverage at the time of the accident. However, Integon denied coverage based on the retroactive cancellation of the policy it obtained under Virginia law after it determined the insured had made material misrepresentation on its insurance application. The Court found: "In sum, on the facts presented, New York's governmental interests, when balanced against Virginia's significant

contacts with the contract and legitimate governmental interest in protecting its honest policyholders from bearing the burden of paying claims incurred by dishonest policyholders, is not sufficiently compelling to warrant the application of New York law." (Id., at 60; citation omitted.) Here too, the Court finds the application of Virginia law is proper. [*3]

Accordingly, plaintiff's motion for summary judgment is denied and defendant's cross-motion for an order dismissing the complaint is granted.

This constitutes the decision and order of the Court.

Dated:Brooklyn, New York

October 24, 2006

DELORES J. THOMAS

Judge Civil Court