Aetna Cas. & Sur. Co. v. Garrett

• Decision Date: 27 December 1968
• Citation: 296 N.Y.S.2d 12,31 A.D.2d 710
• Parties: AETNA CASUALTY AND SURETY CO., Appellant, v. Clinton J. GARRETT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 12

296 N.Y.S.2d 12

31 A.D.2d 710

AETNA CASUALTY AND SURETY CO., Appellant, v. Clinton J. GARRETT et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Dec. 27, 1968.

Martin Rosenblum, Middletown, for appellant (Michael M. Platzman, New York City, of counsel).

Gaffney & Hill, Joseph D. Hill, Kingston, for respondents, Molloy & Haynes.

Patrick J. Hughes, New York City, for respondent, Motor Vehicle Accident Indemnity Corp.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, STALEY and GABRIELLI, JJ.

REYNOLDS, Justice.

Appeal from orders of the Supreme Court, Ulster County, granting motions brought by the Motor Vehicle Accident Indemnification Corporation and respondents Molloy and Haynes dismissing appellant's complaint.

On July 9, 1965, appellant issued and delivered to one Clinton J. Garrett a policy of automobile liability insurance covering a 1957 Buick admittedly then registered in his name. Subsequently on August 4, 1965 Lucille Haynes and Sharon Molloy, infants, were injured when, as they were riding in the vehicle which was then being operated by Raymond W. Daniels, it went out of control and turned over. Appellant alleges that although the vehicle was registered in Garrett's name its true owner was Daniels 'who had a poor driving record and was therefore not insurable.'

In the instant complaint appellant sets forth eight causes of action: the first three causes of action in effect request cancellation of the policy Ab initio on the grounds that it was fraudulently procured in that Daniels was, in fact, the 'true owner' and that Garrett therefore had no insurable interest; the fourth cause of action alleges that prior to August 4, 1965 and sometime during the month of July, 1965 Garrett transferred title to the vehicle to Daniels and thus that at the time of the alleged accident the policy of insurance was of no effect; the fifth cause of action asserts that Garrett has failed to abide by the usual requirements of cooperation in defending the action brought by Molloy and Haynes and seeks exoneration from liability under the policy; the sixth through eighth causes of action merely attempt to join Molloy, Haynes and MVAIC in the suit.

As to the first three causes of action, Special Term properly dismissed them upon authority of Teeter v. Allstate Ins. Co., 9 A.D.2d 176, 192 N.Y.S.2d 610, affd. 9 N.Y.2d 655, 212 N.Y.S.2d 71, 173 N.E.2d 47. Appellant had under Teeter no right to rescind Ab initio only In futuro in view of public policy of this State requiring compulsory insurance. Moreover, as it is undisputed that Garrett was the owner of record of the vehicle and that appellant did issue Garrett a certificate of insurance and an insurance policy, Special Term properly determined that even if Garrett and Daniels were guilty of 'fraud and deceit' in concealing the 'true ownership' of the vehicle, appellant was still liable as it had not sent Garrett the statutorily required notice of cancellation (Vehicle and Traffic Law, § 313; see, Matter of Sweers v. Malloy, 28 A.D.2d 955, 281 N.Y.S.2d 693;...