Ambassador Ins. Co. v. Allied Programs Corp.
| Citation | 564 N.Y.S.2d 54,165 A.D.2d 806 |
| Parties | AMBASSADOR INSURANCE COMPANY, and the Vermont Commissioner of Insurance and Banking, Plaintiffs-Respondents, v. ALLIED PROGRAMS CORP., Defendant-Appellant, and Samuel M. Berman, et al., Defendants. |
| Decision Date | 27 September 1990 |
| Court | New York Supreme Court Appellate Division |
Before KUPFERMAN, J.P., and SULLIVAN, CARRO and SMITH, JJ.
Order, Supreme Court, New York County (David Edwards, Jr., J.), entered on August 9, 1989, which, inter alia, granted the motion by plaintiffs Ambassador Insurance Company ("Ambassador") and the Vermont Commissioner of Insurance and Banking ("the Commissioner") for partial summary judgment as to liability as against defendants Allied Programs Corp. ("Allied"), Samuel M. Berman and Jay S. Leipzig, and which denied the cross-motion of defendant Allied for summary judgment dismissing the complaint, unanimously affirmed.
The Commissioner of Insurance and Banking for the State of Vermont, as receiver of plaintiff Ambassador Insurance Company, an insolvent Vermont property and casualty insurance company, seeks to recover from Allied, former agent for Ambassador, outstanding earned and unearned premiums and commissions due Ambassador as of November 10, 1983, the date of receivership, under a Vermont Superior Court Liquidation Order.
On May 18, 1976, Ambassador entered into a Correspondent's Agreement with Allied, executed on behalf of Allied by defendants Berman and Leipzig, which, explicitly provided in pars. 4 through 6 thereof that Allied was liable for all premiums on policies placed with Ambassador, including those premiums Allied failed to collect.
Based upon the record, we conclude that the IAS Court properly granted the Commissioner's motion for partial summary judgment as to liability and properly denied Allied's cross-motion for summary judgment dismissing the complaint.
The Correspondent's Agreement is enforceable as against Allied, despite the failure of Ambassador to execute same, because the record demonstrates performance of its terms and other unequivocal acts, by parties who have acted in reliance on the Agreement. (Allen v. National Video, Inc., 610 F.Supp. 612, 631; N.L.R.B. v. Local 825, International Union of Operating Engineers, 315 F.2d 695, 699; Norton & Lamphere Construction Co. v. Blow & Cote Inc., 123 Vt. 130, 183 A.2d 230, 234.)
The Uniform Insurers Liquidation Act, which was enacted to provide a uniform system for the orderly and equitable...
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Ambassador Ins. Co. v. Allied Programs Corp.
...of Insurance and Banking v. Allied Programs Corp. NO. 1214 COURT OF APPEALS OF NEW YORK DEC 20, 1990 Former Decision: 165 A.D.2d 806, 564 N.Y.S.2d 54 FINALITY OF AND ORDERS. Motion for leave to appeal dismissed. ...