Lincoln First Bank of Rochester v. Grabowski
| Decision Date | 12 December 1975 |
| Citation | 50 A.D.2d 1074,376 N.Y.S.2d 342 |
| Parties | LINCOLN FIRST BANK OF ROCHESTER, Respondent, v. Alexander GRABOWSKI, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Chamberlain, D'Amanda, Bauman, Chatman & Oppenheimer, Francis D. R. Coleman, Rochester, for appellant.
Nixon, Hargrave, Devans & Doyle, William S. Thomas, Jr. Rochester, for respondent.
Before MARSH, P.J., and SIMONS, MAHONEY, GOLDMAN and DEL VECCHIO, JJ.
Plaintiff is the assignee of a conditional sales contract between defendant and Culver Dodge, Inc. for the purchase of an automobile. Defendant defaulted on the contract and plaintiff obtained an order for seizure of the automobile pursuant to CPLR 7102. Defendant claims that the contract is unconscionable (U.C.C., § 2--302(1)) and that plaintiff is estopped from enforcing it because the contract does not conform to various provisions of Personal Property Law, § 302, subd. (5) and (6) and Insurance Law, § 162. Defendant contends that he is totally disabled within the terms of the contract and that payment must be made under the provisions of a credit life insurance policy which he purchased to cover the loan. The insurer has disclaimed, claiming the illness pre-existed the contract and coverage was therefore excluded.
The contract specifies the amount included in the contract for credit life insurance. It also contains a Notice of Proposed Insurance which states that coverage is subject to the terms, conditions, limitations and exclusions 'contained in the certificate of insurance', a certificate which was mailed to defendant and admittedly received by him. The contract complies with Personal Property Laws, § 302, subd. 5(2) and subd. 6.
The Certificate of Insurance stated that coverage was excluded for 'total disability resulting from sickness, disease or physical condition' for which the debtor was treated within six months immediately prior to the policy date, unless the total disability commences after the policy has been in force for six consecutive months. Defendant contends that this exclusion was not valid under Insurance Law, § 162(3) because it was not contained in the contract.
Insurance Law, § 162(3) applies only to the 'policy and in each certificate issued thereunder' and not to the Notice of Insurance contained in the contract. The Certificate of Insurance Complies with this provision.
Finally, the 'Notice of Proposed Insurance' contained in the contract meets the requirements...
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Marine Midland Bank v. Fisher
...that of October 19, 1979 (see Dennis v. Stout, 24 A.D.2d 461, 260 N.Y.S.2d 325) and is appealable (see Lincoln First Bank of Rochester v. Grabowski, 50 A.D.2d 1074, 1075, 376 N.Y.S.2d 342). Two procedural flaws in the proceedings before Special Term mandate reversal of the November 26, 1980......
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Wolther v. Samuel
...albeit no appeal was taken from the original order (Price v. Price, 228 App.Div. 796, 240 N.Y.S. 29; Lincoln First Bank of Rochester v. Grabowski, 50 A.D.2d 1074, 376 N.Y.S.2d 342; Marine Midland Bank v. Fisher, 85 A.D.2d 905, 447 N.Y.S.2d 186; 7B McKinney's Cons.Laws of N.Y., Practice Comm......
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Lincoln First Bank of Rochester v. Grabowski
...1028 40 N.Y.2d 801, 356 N.E.2d 294 Lincoln First Bank of Rochester v. Grabowski COURT OF APPEALS OF NEW YORK Sept 03, 1976 376 N.Y.S.2d 342, 50 A.D.2d 1074 MOTION FOR LEAVE TO Dismissed. ...
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