Tobias v. Liberty Mut. Fire Ins. Co.

• Decision Date: 16 November 2010
• Citation: 78 A.D.3d 928,910 N.Y.S.2d 663
• Parties: Del K. TOBIAS, respondent, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 663

78 A.D.3d 928

Del K. TOBIAS, respondent,

v.LIBERTY MUTUAL FIRE INSURANCE COMPANY, appellant, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 16, 2010.

Jaffe & Asher, LLP, New York, N.Y. (Marshall T. Potashner of counsel), for appellant.

Lloyd Somer, New York, N.Y., for respondent.

In an action, inter alia, to recover damages for breach of contract, the defendant Liberty Mutual Fire Insurance Company appeals, as limited by its brief, from so much an order of the Supreme Court, Kings County (Schmidt, J.), dated October 21, 2009, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

"The insurer has the burden of proving the validity of its timely cancellation of an insurance policy" ( Badio v. Liberty Mut. Fire Ins. Co., 12 A.D.3d 229, 229, 785 N.Y.S.2d 52). In moving for summary judgment, the defendant Liberty Mutual Fire Insurance Company (hereinafter Liberty Mutual) demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that the plaintiff received a cancellation notice from Liberty Mutual ( see Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829-830, 414 N.Y.S.2d 117, 386 N.E.2d 1085; Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 680, 729 N.Y.S.2d 776; Matter of State-Wide Ins. Co. v. Simmons, 201 A.D.2d 655, 656, 608 N.Y.S.2d 274). However, in opposition, the plaintiff submitted evidence raising a triable issue of fact as to the validity of such cancellation-specifically, whether Liberty Mutual properly cancelled her policy for failure to pay the insurance premium ( see Zurruz Realty Corp. v. Calvert Ins. Co., 228 A.D.2d 267, 643 N.Y.S.2d 582; Brody Truck Rental v. Country Wide Ins. Co., 226 A.D.2d 205, 640 N.Y.S.2d 557; see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Further, contrary to Liberty Mutual's contention, the doctrine of judicial estoppelis inapplicable. Under the doctrine of judicial estoppel, or estoppel against inconsistent positions, a party is precluded from inequitably adopting a position directly contrary to or inconsistent with an earlier assumed position in the same action or proceeding ( see Matter of Hartsdale Fire Dist. v. Eastland Constr., Inc., 65 A.D.3d 1345, 1348, 886 N.Y.S.2d 454). The plaintiff's contention that several parties may have...