Holmes v. Utica Mut. Ins. Co.
| Decision Date | 24 March 1983 |
| Citation | 92 A.D.2d 1045,461 N.Y.S.2d 549 |
| Parties | Roderick E. HOLMES, Appellant, v. UTICA MUTUAL INSURANCE COMPANY et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Richard I. Mulvey, Ithaca (Robert C. Mulvey, Ithaca, of counsel), for appellant.
Thaler & Thaler, Ithaca (Nathaniel F. Knappen, Ithaca, of counsel), for respondent Utica Mut. Ins. Co.
Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and WEISS, JJ.
Appeal from an order of the Supreme Court at Special Term, entered June 29, 1982 in Tompkins County, which granted defendant Utica Mutual Insurance Company's motion for summary judgment and denied plaintiff's cross motion for summary judgment.
In this action, plaintiff seeks judgment declaring the rights of the parties under an automobile liability insurance policy issued to him by defendant Utica Mutual Insurance Company and requiring the company to defend and to indemnify him in connection with a suit against him by defendant Dillon resulting from an automobile accident on January 5, 1982. Following the answer containing general denials, defendant carrier moved pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that notice of cancellation of the policy was mailed to plaintiff on or about September 7, 1981, effective October 5, 1981. Plaintiff cross-moved for summary judgment on the ground the notice of cancellation was defective because it did not comply with section 313 of the Vehicle and Traffic Law and plaintiff did not receive the notice. Special Term granted defendant carrier's motion and denied the cross motion holding that proper notice of cancellation had been sent and that failure to serve notice upon the Commissioner of Motor Vehicles did not affect the cancellation. Plaintiff has appealed.
Section 313 (subd. 1) of the Vehicle and Traffic Law pertaining to cancellation of insurance policies by notices sent by mail, was amended effective September 17, 1978 to add to paragraph (a) "[n]o contract of insurance * * * shall be terminated by cancellation by the insurer * * * until at least twenty days after mailing to the named insured * * * a notice of termination by regular mail, with a certificate of mailing, properly endorsed by the postal service to be obtained * * * " (L.1978, ch. 425) (new matter italicized). The question on this appeal is whether cancellation has been sufficiently established to eliminate any triable issues of fact. The chief element in dispute is what constitutes sufficient proof of mailing of the notice. The burden of proving valid cancellation is upon the insurance company which disclaims coverage on the basis of cancellation (Viuker v. Allstate Ins. Co., 70 A.D.2d 295, 420 N.Y.S.2d 926). Plaintiff argues that Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 414 N.Y.S.2d 117, 386 N.E.2d 1085, and several additional cases cited in his brief show that Utica Mutual failed to meet the standard of proof of mailing. However, plaintiff fails to appreciate that the September 17, 1978 amendment to section 313 of the Vehicle and Traffic Law added a paragraph (b) to subdivision 1 which in part states: "A copy of a notice of termination and the certificate of mailing, when kept in the regular course of the insurer's business, shall constitute conclusive proof of compliance with the mailing requirements of this chapter" (L.1978, ch. 425). The cases relied upon by plaintiff all pre-date the amendment and cannot be read as superior to or overruling the plain statutory language which was intended to eliminate disputes as to what constitutes proof of mailing (seeFelician v. State Farm Mut. Ins. Co., 113 Misc.2d 825, 830-831, 449 N.Y.S.2d 887; see, also, Memorandum, N.Y.Legis.Ann., 1978, p. 247). Moreover, examination of the record discloses that plaintiff's papers in opposition to the motion and in support of his cross motion consist solely of an attorney's affidavit and the pleadings. As to...
To continue reading
Request your trial
-
Maki v. Northland Ins. Co.
...911 N.Y.S.2d 660 [2010] ; GEICO Indem. v. Roth, 56 A.D.3d 1244, 1244–1245, 867 N.Y.S.2d 622 [2008] ; Holmes v. Utica Mut. Ins. Co., 92 A.D.2d 1045, 1045, 461 N.Y.S.2d 549 [1983] ). Once such burden has been met, the burden shifts to the party contesting the cancellation to prove that the in......
-
Saranac Lake Federal Sav. and Loan Ass'n v. Fidelity and Deposit Co. of Maryland
...the burden of proving valid cancellation is upon the insurer disclaiming coverage on the basis of cancellation Holmes v. Utica Mut. Ins. Co., 92 A.D.2d 1045, 461 N.Y.S.2d 549). In the case at bar, it is our view that sufficient questions of fact have been presented so as to justify the deni......
-
Ficarro v. AARP Inc.
...of mailing, obtained from the postal service, conclusively proves that the notice was actually mailed (see, Holmes v. Utica Mut. Ins. Co., 92 A.D.2d 1045, 1045-1046, 461 N.Y.S.2d 549). Supreme Court concurred in this assessment and, accordingly, dismissed the complaint against We reverse. G......
-
Bradley v. William Penn Life Ins. Co. of N.Y.
...Co., 78 A.D.3d 928, 910 N.Y.S.2d 663 ; Badio v. Liberty Mut. Fire Ins. Co., 12 A.D.3d 229, 785 N.Y.S.2d 52 ; Holmes v. Utica Mut. Ins. Co., 92 A.D.2d 1045, 461 N.Y.S.2d 549 ; Viuker v. Allstate Ins. Co., 70 A.D.2d 295, 299, 420 N.Y.S.2d 926 ). We agree with the Supreme Court that William Pe......