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Roth v. Aetna Life and Casualty Insurance Co.

Appellate Division of the Supreme Court of New York, Second Department
Mar 2, 1987
128 A.D.2d 514 (N.Y. App. Div. 1987)

Summary

In Roth v Aetna Life Cas. Ins. Co. (128 AD2d 514, 515 [1987]), which was decided in 1987, this Court held that a premium finance company that cancelled an assigned risk automobile insurance policy had to advise the insured that he or she had a right to have the NYAIP's Governing Committee review the cancellation of the policy in order for the cancellation to be effective (contra Aetna Cas. Sur. Co. v Preisigke, 139 AD2d 900, 901 [1988]).

Summary of this case from Gov't. Empls. v. Lopez

Opinion

March 2, 1987

Appeal from the Supreme Court, Orange County (Dickinson, J.).


Ordered that the order is affirmed insofar as appealed from, with costs payable to the plaintiffs.

We agree with Special Term that the defendant Allstate Insurance Company (hereinafter Allstate) was not entitled to summary judgment inasmuch as the cancellation notice sent to Allstate's insured failed to state that she had a right to a review of the cancellation by a committee of the Assigned Risk Plan. Under these circumstances, the attempt at cancellation was ineffective (see, Daniel v. Rivera, 93 A.D.2d 877, affd 60 N.Y.2d 662; K G Feathered Pets v. Lo Presti, 100 A.D.2d 894; Government Employees Ins. Co. v. Mizell, 36 A.D.2d 452). That the notice of cancellation was sent by a premium finance company does not change this result, because, notwithstanding language in a premium finance agreement appointing the finance company as the insured's attorney-in-fact to effect cancellation, the finance company does not act as the insured's agent when it attempts to cancel a policy for nonpayment of a premium (see, Stone v Travelers Ins. Co., 40 Misc.2d 164, 169-170; Felician v. State Farm Mut. Ins. Co., 113 Misc.2d 825, 827).

Moreover, Allstate's claim that summary judgment is warranted because it did not receive timely notice of the accident is without merit. The subject policy required that Allstate be notified at "any accident, occurrence or loss * * * as soon as practicable". An injured party is not held to the same standard as an insured with respect to the notification requirements of an insurance policy (see, Hartford Acc. Indem. Co. v. CNA Ins. Cos., 99 A.D.2d 310, 314; see also, Mason v. Allstate Ins. Co., 12 A.D.2d 138, 147-148). In addition, the plaintiffs alleged a reasonable excuse for their own delay in notifying Allstate of the accident and of their lawsuit against Allstate's insured, to wit, that they were unaware of the subject Allstate policy earlier. Finally, the question of whether an insurer has received timely notice is generally a triable issue of fact (see, Gluck v London Lancashire Indem. Co., 2 A.D.2d 751, affd 2 N.Y.2d 953). Mollen, P.J., Weinstein, Eiber and Sullivan, JJ., concur.


Summaries of

Roth v. Aetna Life and Casualty Insurance Co.

Appellate Division of the Supreme Court of New York, Second Department
Mar 2, 1987
128 A.D.2d 514 (N.Y. App. Div. 1987)

In Roth v Aetna Life Cas. Ins. Co. (128 AD2d 514, 515 [1987]), which was decided in 1987, this Court held that a premium finance company that cancelled an assigned risk automobile insurance policy had to advise the insured that he or she had a right to have the NYAIP's Governing Committee review the cancellation of the policy in order for the cancellation to be effective (contra Aetna Cas. Sur. Co. v Preisigke, 139 AD2d 900, 901 [1988]).

Summary of this case from Gov't. Empls. v. Lopez
Case details for

Roth v. Aetna Life and Casualty Insurance Co.

Case Details

Full title:JAMES ROTH et al., Respondents, v. AETNA LIFE AND CASUALTY INSURANCE…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 2, 1987

Citations

128 A.D.2d 514 (N.Y. App. Div. 1987)

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