Opinion
February 5, 1979
In an action by the plaintiff insurance company, as subrogee, to recover from the defendant insurance company one half the amount paid for a fire loss, plaintiff appeals from so much of an order of the Supreme Court, Kings County, dated August 21, 1978, as, upon reargument, adhered to the original determination granting defendant's motion for summary judgment. Order affirmed insofar as appealed from, with $50 costs and disbursements. The issue on the motion for summary judgment was not whether homeowner Camile Lauria delivered to respondent, Hartford Fire Insurance Co., a notice of cancellation (see Russ Togs v. Fidelity-Phenix Ins. Co., 36 A.D.2d 706), but whether prior to the fire of January 30, 1976, Lauria accepted an offer from Hartford of a renewal policy. In our opinion, as a matter of law, there was no evidence whatsoever that prior to the January 30, 1976 fire Camile Lauria intended to, and did in fact, conduct herself in any manner which could be construed as an acceptance of Hartford's offer. On the contrary, her procuring a policy from appellant, her complaint and her deposition in her suit against appellant, and the affidavit of Mr. Bosley, an insurance adjuster, conclusively demonstrate that Camile Lauria actually had rejected respondent's offer of a renewal policy (see Berman v. North British Mercantile Ins. Co., 74 Misc. 431; Paccione v Home Ind. Co., 244 App. Div. 339, affd 273 N.Y. 643). Mollen, P.J., Hopkins, Rabin and Martuscello, JJ., concur.