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February 25, 1997


The opinion of the court was delivered by: HURD

 The plaintiff in this action, The Centennial Life Insurance Company ("Centennial"), alleges that the defendant Anthony Nappi ("Nappi") fraudulently misrepresented his birth date to Centennial in order to collect disability benefits *fn1" to which he was not entitled. The plaintiff further alleges that Nappi breached the contract with Centennial, and breached the covenant of good faith and fair dealing. Centennial seeks restitution of the amount it allegedly overpaid to Nappi, prejudgment interest on that amount, costs, attorney's fees, punitive damages, and a declaration that its obligation to pay disability benefits to Nappi terminated on March 22, 1993. Nappi answered the complaint and counter-claimed alleging that he is due disability benefits up to age 70. Presently before the court is plaintiff's motion for summary judgment. Oral argument was heard on October 24, 1996. The court reserved decision.


 The following facts are undisputed by the parties. Defendant Nappi, a psychiatrist, applied for a group disability insurance policy which Centennial offered to members of the American Psychiatric Association. On his application, Nappi represented that he was born on March 22, 1928, in New York City. Centennial issued a policy to Nappi and he was thereafter covered by the disability insurance policy. On March 7, 1988, Nappi was injured when he fell down the stairs in a mental health facility where he was working. As a result of this fall, Nappi became permanently disabled.

 Nappi then filed a claim for benefits under the disability insurance policy. As was provided for by the policy, Centennial paid Nappi benefits of $ 5,000 each month beginning in March 1988. The policy which was in effect when Nappi became disabled provided that for insureds injured at age 50 or less benefits would be paid for life; for insureds injured at age 50 through 63 benefits were payable to age 65; and for insureds injured at ages 64 through 69 benefits were paid for 12 months. *fn2" The policy further provided that the insurance coverage terminated upon attainment of age 70.

 Several months prior to March, 1993, the scheduled termination date of Nappi's benefits, Ms. Dianna Benjamin *fn3" notified Nappi of the upcoming termination. Ms. Benjamin was an employee of Professional Risk Management Services, which at that time administered the Centennial policy.

 In January of 1993, Nappi notified Centennial that his birth year was in reality 1938, and requested a new application form to "correct" the error. *fn4" Shortly thereafter Nappi applied to the Supreme Court of New York County for an order directing The City of New York Department of Health, Bureau of Vital Statistics, to issue a certificate of delayed registration of birth reflecting a birth date of March 22, 1938. The City opposed Nappi's application. On October 12, 1993, the Supreme Court granted that application. See Schlesinger, J., Nappi v. City of New York, Dep't of Health, Bureau of Vital Statistics, Index No. 112833/93 (N.Y. Sup. Ct. Oct. 12, 1993)(Matthews Aff. Ex. Q).

 Nappi provided several declarations and items of documentation to the Supreme Court, upon which that court relied in making its decision. See id. First, Nappi represented to the Supreme Court that he received a new certified copy of his birth certificate for a new employer. Id. At that time he noticed that his birth date was listed as March 22, 1928, and he believed that the birth year contained a typographical error. Id. In a sworn affidavit Nappi represented to the court that upon noticing the discrepancy he spoke with several older living relatives *fn5" who explained to him that exactly ten years to the day before his birth, his mother had given birth to another boy, also named Anthony. Id. This boy died as an infant in Italy. Id. Nappi's aunt corroborated this story by sworn affidavit. Id.

 Nappi's sister, who was born in 1930, stated that Nappi is her younger brother and he was born in 1938. Id. Also submitted to the Supreme Court were affidavits from Nappi's friends from grammar school, high school, and college who stated that they knew Nappi and knew him to be of their age. Id. Nappi submitted school records from elementary and secondary school which reflected a 1938 birth year. Id. Nappi provided a certificate of baptism which stated that he was baptized on May 27, 1938, and a marriage certificate from 1961 which provided that he was born in 1938. Id.

 Based upon this information, the Supreme Court granted Nappi's application. Id. On December 29, 1993, the Bureau of Vital Statistics issued a Certificate of Birth, Delayed Registration, for one Anthony Nappi, born at home in New York City on March 22, 1938.

 Nappi then provided this birth certificate to Centennial, which had continued to make disability payments of $ 5,000 monthly to Nappi based upon his representation that his true birth year was 1938. Centennial continued these monthly payments through August 1994.

 Paradoxically, this recitation of the undisputed facts presents a straightforward scenario, obscuring the underlying tangled web woven by Nappi. Centennial has presented the following facts for the record, apparently sufficiently untangling the web so that Nappi has either admitted the facts presented or asserted his Fifth Amendment right not to incriminate himself.

 In November 1993, Centennial took over administration of the policy from Professional Risk Management Services. Sometime thereafter, it became evident to Centennial that something was amiss with Nappi's disability benefits. An investigation uncovered the following evidence indicating Nappi's true year of birth was 1928.

 A Certificate and Record of Birth dated March 26, 1928, shows the birth of one Anthony Nappi, on March 22, 1928, to Angelina and Generoso Nappi in the City of New York.

 A Certificate of Baptism *fn6" dated February 7, 1961, certifies that Anthony Nappi, son of Angelina and Generoso Nappi was baptized by Reverend J. O'Brien on May 27, 1938, at St. Mary's Church in Utica, New York. The Certificate, signed by Assistant Pastor John Cavanaugh, reflects that the record of baptism appeared on page 127 of Volume 6 of the church records. In a sworn affidavit, Father Robert Yeazel, Vicar for Priests in the Syracuse Diocese of the Roman Catholic Church, stated that he reviewed the records of the Chancery Office and found that there was not a Father J. O'Brien assigned to St. Mary's Church in Utica, New York, ...

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