Vicari v. Rialto Fruit Shop, Inc.

• Decision Date: 01 May 1969
• Citation: 32 A.D.2d 679,299 N.Y.S.2d 709
• Parties: Claim of Frank VICARI, Respondent, v. RIALTO FRUIT SHOP, INC., Respondent, Public Service Mutual Insurance Co., Appellant, and U.S. Fidelity & Guaranty Co., Respondent. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 709

299 N.Y.S.2d 709

32 A.D.2d 679

Claim of Frank VICARI, Respondent, v. RIALTO FRUIT SHOP, INC., Respondent, Public Service Mutual

Insurance Co., Appellant, and U.S. Fidelity &

Guaranty Co., Respondent.

Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

May 1, 1969.

Rosenberg & Rosenberg, New York City, for claimant-respondent.

Philip J. Caputo, New York City, for respondents Rialto Fruit and U.S. Fidelity.

Milton Peckman, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen., Daniel Polansky and Harry Rackow, Asst. Attys. Gen., for Workmen's Compensation Bd.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and GREENBLOTT, JJ.

REYNOLDS, Justice.

Appeal from a decision of the Workmen's Compensation Board holding that a policy of workmen's compensation insurance issued by appellant was in full force and effect on September 21, 1966, the date claimant was injured, because the policy had not been cancelled in accordance with the provisions of subdivision 5 of section 54 of the Workmen's Compensation Law.

Appellant admits that it issued a renewal policy covering the employer for one year commencing November 18, 1965 but asserts that 'The insured returned the policy as not wanted.' On January 20, 1966 appellant notified the Chairman of the Workmen's Compensation Board of the cancellation of the policy, effective November 18, 1965, but no notice was served on the employer as mandated by subdivision 5 of section 54. The question is thus whether a renewal policy which has been returned by the employer must be cancelled in accordance with subdivision 5 of section 54.

It is well settled that an insurance company's unsolicited tender of a renewal policy is no more than an offer on its part which, if not accepted, creates no contract of insurance requiring statutory notice of cancellation (Matter of Leide v. Jacy Painting Co., 282 App.Div. 906, 125 N.Y.S.2d 115 mot. for lv. to app. den. 306 N.Y. 984, 117 N.E.2d 808; Matter of Barnes v. Baker, 30 A.D.2d 580; Matter of Pucci v. Novel Lithographers, 29 A.D.2d 590, 285 N.Y.S.2d 362). We find no merit in the respondent board's argument that these cases are distinguishable on the basis that the tender of renewal had been rejected prior to the expiration of the policy in force. The cases do not factually support this suggested distinction.

While the record does not sustain the board's finding that appellant's renewal policy was in effect on the date of claimant's accident, neither would it support a determination that a contract of...