96 N.Y.2d 475, Rosner v. Metropolitan Ins Co

Citation:96 N.Y.2d 475
Party Name:Rosner v. Metropolitan Ins Co
Case Date:July 10, 2001
Court:New York Court of Appeals

Page 475

96 N.Y.2d 475

Hanna Rosner, as Guardian of Israel Rosner, Respondent,


Metropolitan Property and Liability Insurance Company, Defendant and Third-Party Plaintiff-Appellant. Charles D. Mintz et al., Third-Party Defendants-Respondents.

New York Court of Appeals

July 10, 2001.

Argued June 5, 2001

Page 476


Flink, Smith & Associates, L. L. C., Latham (Edward B. Flink and Jeffrey D. Wait of counsel), for appellant. I. The Second Circuit Court of Appeals decision certifying the question demonstrates that defendant's interpretation of Insurance Law § 3425 (a) (7) is necessarily the correct interpretation. II. The drafting history of Insurance Law § 3425 (a) establishes that "the date as of which a covered policy is first issued" is its effective date. (Henry v City of New York, 94 N.Y.2d 275.) III. Basic rules of English usage and statutory interpretation confirm that the phrase "as of" refers to the policy's effective date. IV. Plaintiffs' interpretation of Insurance Law § 3425 would fundamentally alter the rights and obligations of insureds and insurers throughout New York. V. Plaintiffs' interpretation is at odds with the relevant case law. (Seaver v Massachusetts Bonding & Ins. Co., 7 A.D.2d 310, 7 N.Y.2d 950; B.T.R. E. Greenbush v General Acc. Co., 206 A.D.2d 791; Benatovich v Propis Agency, 224 A.D.2d 998; Armour & Co. v Celic, 294 F.2d 432; Hartford Fire Ins. Co. v Bonsera, Inc., 177 Misc 2d 55.) VI. Plaintiffs' interpretation would improperly change the terms of the insurance contract at issue. (Downing v Allstate Ins. Co., 43 Misc 2d 215; Simon v Colonial States Brokerage Corp., 128 A.D.2d 603; Hartford Fire Ins. Co. v Bonsera, Inc., 177 Misc 2d 55.)

Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac of counsel), and Subin Associates, L. L. P. (Herbert S. Subin of counsel), for respondents. The District Court correctly held, on this record, and based on the terms of the relevant statute, principles of statutory construction, and pertinent case law, that the phrase "the date as of which a covered policy is first issued" referred to the date it was created, though the policy was antedated to provide back coverage due to the wrongful cancellation of the personal lines excess policy, and this Court should answer the certified question accordingly. (Fireman's Fund Ins. Co. v Hartford Cas. Ins. Co., 162 Misc 2d 365; Victor v Turner, 113 A.D.2d 490; Saranac Lake Fed. Sav. & Loan Assn. v Fidelity & Deposit Co., 159 A.D.2d 895; Government

Page 477

Empls. Ins. Co. v Mizell, 36 A.D.2d 452; Zeman v Zach Agency, 75 A.D.2d 261; Reliance Ins. Co. v Rabinowitz, 65 A.D.2d 619; Matter of Country-Wide Ins. Co. [Zanfardino--Government Empls. Ins. Co.], 54 A.D.2d 871; Matter of Fromer v John St. Serv. Ctr., 34 A.D.2d 1081; Meltzer v Koenigsberg, 302 N.Y. 523; Gonzalez v Iocovello, 93 N.Y.2d 539.)


Graffeo, J.

On May 29, 1996, while walking on a roadway, Israel Rosner was struck by an automobile operated by Charles Mintz and owned by Leddy Mintz. As a result of the accident, Rosner suffered serious head injuries. At the time, Metropolitan Property and Casualty Insurance Company insured the Mintzes under an automobile liability policy with single limit coverage of $100,000. For a number of years previously, Metropolitan also provided a $1,000,000 personal excess liability policy to the Mintzes.

After Metropolitan paid Rosner $100,000, the full amount of coverage under the automobile policy, Rosner's guardian initiated a declaratory judgment action in the United States District Court for the Eastern District of New York seeking a determination that the Mintzes' personal excess liability policy remained in effect on May 29, 1996, the day of the accident. Metropolitan contended that the excess coverage policy was properly discontinued on May 25, 1996, just days before the accident. In response to cross motions for summary judgment, the District Court held in favor of Rosner, noting that Insurance Law § 3425 (a) (7) measured mandatory policy periods for personal line insurance policies from the date policies are executed rather than from the effective dates of coverage. Metropolitan appealed and the United States Court of Appeals for the Second Circuit, finding no definitive judicial interpretation of this section of the Insurance Law, certified the following question to this Court:

"With reference to the facts of this case, does the phrase 'the date as of which a covered policy is first issued' as used in Section 3425 (a) (7) of the Insurance Law refer to (a) the date of execution of...

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