Opinion
Argued September 30, 1999
December 20, 1999
In an action for a judgment declaring that the defendant Liberty Mutual Insurance Company improperly cancelled an insurance policy, the defendant Liberty Mutual Insurance Company appeals from a "supplemental" judgment of the Supreme Court, Nassau County (McCarty, J.), entered October 22, 1998, which awarded the plaintiff the principal sum of $743.75 as and for costs expended by the plaintiff in the action.
Troy and Troy, Centereach, N.Y. (Edward J. Troy of counsel), for appellant.
Bertram Herman, P.C., East Norwich, N.Y., for respondent.
DANIEL W. JOY, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY and SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the supplemental judgment is affirmed, with costs.
The arguments raised on this appeal relate to a prior judgment entered March 11, 1998, which declared, inter alia, that the defendant Liberty Mutual Insurance Company (hereinafter Liberty Mutual) was required to defend its insured with regard to an underlying accident. Liberty Mutual did not appeal from that judgment, but rather from a subsequent supplemental judgment which merely awarded costs to the plaintiff. Accordingly, the arguments raised on this appeal are not properly before this court.
In any event, and contrary to its arguments, Liberty Mutual was not authorized to cancel its policy of automobile liability insurance retroactively (see, e.g., Teeter v. Allstate Ins. Co., 9 N.Y.2d 655 ; Aetna Cas. Sur. Co. v. O'Connor, 8 N.Y.2d 359 ; Aetna Cas. Sur. Co. v. Garrett, 31 A.D.2d 710, affd 26 N.Y.2d 729 ; DiDonna v. State Farm Mut. Ins. Co., 259 A.D.2d 727 [2d Dept., Mar. 29, 1999];Matter of Interboro Mut. Indem. Ins. Co. v. Cermak, 187 A.D.2d 513 ;Mooney v. Nationwide Mut. Ins. Co., 172 A.D.2d 144 ; Fireman's Fund Ins. Co. v. Corcoran, 156 A.D.2d 167 ; Matter of Liberty Mut. Ins. Co. v. McClellan, 127 A.D.2d 767 ). There is no proof in the present case that the pedestrian who was injured as a result of the accident was a participant in the fraud which allegedly induced Liberty Mutual to issue its policy. Therefore, the cases relied upon by Liberty Mutual (see, Travelers Indem. Co. v. Avelino, 191 A.D.2d 229 ;Taradena v. Nationwide Mut. Ins. Co., 239 A.D.2d 876 ) are inapposite.
JOY, J.P., GOLDSTEIN, McGINITY, and FEUERSTEIN, JJ., concur.