Opinion
December 4, 1973
Judgment, Supreme Court, Bronx County, entered on November 14, 1972, adjudging petitioner-appellant Cosmopolitan Mutual Insurance Company's disclaimer of liability invalid and directing Cosmopolitan to arbitrate Mrs. Pagan's claim for damages and denying petitioner Pagan's motion for leave to sue Motor Vehicle Accident Indemnification Corporation, unanimously reversed, on the law and the facts, and vacated. Petitioner-appellant shall recover of respondent MVAIC $40 costs and disbursements of this appeal. Arbitration between Mrs. Pagan and Cosmopolitan is permanently stayed and Mrs. Pagan's motion for leave to sue MVAIC is granted. The trial court's finding that the cancellation of the insurance policy was ineffectual for failure on the part of the carrier to comply with the provisions of section 576 Banking of the Banking Law is contrary to the evidence. The record clearly establishes that the policy was properly canceled as of September 10, 1970 for nonpayment of premium. The decedent's policy was issued on March 30, 1970 upon a down payment of $70 and an agreement to pay the balance in eight monthly installments of $18.75 each, commencing on April 13, 1970. Pagan failed to make timely payments for each month during the time the policy was in existence. The payment due August 13, 1970 was not received until September 17, 1970. On August 27, 1970, a cancellation notice was sent to the insured canceling the policy for nonpayment of premium, effective September 10, 1970. While Mrs. Pagan testified that neither she nor her husband had ever received any notice of cancellation in the mail, she admitted that she learned of the cancellation in October, 1970 when a money order which had been sent in payment of an installment was returned. This money order was cashed by Mr. Pagan. No other installment payment was tendered after October, 1970. The accident out of which this lawsuit arose occurred five months after Pagan had stopped paying the premium installments and after actual notice of cancellation of the insurance policy.
Concur — McGivern, J.P., Nunez, Kupferman, Lane and Capozzoli, JJ.