Opinion
June 30, 1970
Appeal from an order of the County Court of Schenectady County, denying appellant's motion to dismiss respondent's complaint on the grounds that it fails to state a cause of action (CPLR 3211, subd. [a], par. 7). Respondent brings the instant action seeking various purported damages, including a liability claim made against her by a third party, for the appellant's alleged breach of contract in canceling during its term an automobile liability insurance policy issued to respondent for the year ending November 26, 1967. In its answer appellant asserts that it canceled the policy for nonpayment of premiums, but the record itself at this juncture clearly indicates solely that full payment for the liability policy was in fact paid by respondent. In its brief here appellant asserts that the unpaid premiums which precipitated the cancellation were for later added collision coverage on a newly purchased vehicle, but such contention or any support thereof does not appear anywhere in the record before us. Additionally, respondent denies receiving the notice of cancellation assertedly mailed by appellant on August 14, 1967. At this posture of the case we cannot say that there are not issues present requiring a plenary trial. Nor does the "no-action" condition in the insurance policy here bar the respondent's second cause of action based on appellant's failure to defend her in the liability action brought against her by the third party. Respondent's action is for breach of contract not on the policy, and appellant in denying the efficacy of the policy is precluded from raising this provision as a defense (e.g., Beckley v. Otsego County Farmers Coop. Fire Ins. Co., 3 A.D.2d 190, 194, mot. for lv. to app. dsmd. 2 N.Y.2d 990; Mayor, Lane Co. v. Commercial Cas. Ins. Co., 169 App. Div. 772, 777-778; Reese v. Fidelity Deposit Co., 93 Misc. 31, 33-34). Order affirmed, with costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Reynolds, J.P.