Golden Age Med. Supply, Inc. v Clarendon Natl. Ins. Co.

[*1] Golden Age Med. Supply, Inc. v Clarendon Natl. Ins. Co. 2010 NY Slip Op 52010(U) [29 Misc 3d 136(A)] Decided on November 19, 2010 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-254 K C.

Golden Age Medical Supply, Inc. as Assignee of ORLANDO ESPINAL, JESICA SABOUR and FRITZ SABOUR, Respondent,

against

Clarendon National Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 6, 2008. The order granted plaintiff's motion for partial summary judgment and denied defendant's cross motion for partial summary judgment.

ORDERED that the order is modified by providing that plaintiff's motion for partial summary judgment is denied and, as so modified, affirmed without costs on condition that defendant, within 60 days of service upon it of a copy of this decision and the order entered hereon with notice of entry, serve upon plaintiff and file with the Clerk of the Civil Court an affidavit of Carol Keyes, identical to the affidavit submitted previously by defendant, accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event that defendant fails to duly serve and file such an affidavit, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for partial summary judgment seeking to recover on the claims it submitted for healthcare services rendered to assignor Orlando Espinal. Defendant cross-moved for summary judgment seeking dismissal of the complaint insofar as it sought to recover for services rendered to assignor Espinal. The Civil Court granted plaintiff's motion and denied defendant's cross motion. Defendant appeals, arguing that its cross motion should have been granted or, in the alternative, that plaintiff's motion should have been denied because defendant raised a triable issue of fact.

Defendant argues first that the complaint should be dismissed as to the subject claims, which were submitted on January 14, 2002, because defendant's assignor agreed to revoke the assignment in a December 2002 stipulation. Regardless of whether this defense was properly presented, it fails as a matter of law because "the assignor or legal representative of the assignor shall not unilaterally revoke the assignment after the services for which the assignment was originally executed were rendered" (Insurance Department Regulations [11 NYCRR] § 65-3.11 [d]). [*2]

Defendant's second argument is that plaintiff should not recover for services rendered to assignor Espinal because he made material misrepresentations in order to obtain the subject New Jersey insurance policy. While New York law does not allow for the retroactive cancellation of an automobile insurance policy (see Vehicle and Traffic Law § 313), New Jersey law does allow for such retroactive rescission for a material misrepresentation at the inception of the policy (see Rutgers Cas. Ins. Co. v LaCroix, 194 NJ 515, 946 A2d 1027 [2008]), and, had there been a cancellation of the subject insurance policy, New Jersey law would properly be applied (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). However, defendant has not demonstrated that it cancelled the subject insurance policy.

On the other hand, defendant's employee's assertion that the subject insurance policy was obtained by fraud and/or material misrepresentations is a permissible affirmative defense that, if proved, precludes any recovery by the insured or a health care provider who accepts an assignment of the insured's no-fault benefits (see A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8, 11 [App Term, 2d & 11th Jud Dists 2006]). We find that while the documents attached to defendant's cross motion are not a sufficient basis for an award of summary judgment dismissing the complaint as to the claims submitted for services rendered to assignor Espinal, they are sufficient to raise a triable issue of fact as to whether the subject insurance policy was fraudulently obtained.

With respect to plaintiff's timely objection to the form of defendant's employee's affidavit, we note that while defendant permissibly sought to cure this defect in its reply papers (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]), defendant submitted a certificate of authenticity rather than the required certificate of conformity (see CPLR 2309 [c]; Real Property Law § 299-a [1]; see also Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [Civ Ct, Queens County 2002]). Because the certificate of conformity can be given nunc pro tunc effect once the proper certificate is obtained, the order is modified by providing that plaintiff's motion for partial summary judgment is denied on the conditions stated above (see Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 26 Misc 3d 131[A], 2010 NY Slip Op 50043[U] [App Term, 1st Dept 2010]; see generally Sandoro v Andzel, 307 AD2d 706 [2003]). Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: November 19, 2010