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PROVIDENCE WASHINGTON INSURANCE CO. v. SQUIER CORPORATION ET AL. (11/07/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


November 7, 1968

PROVIDENCE WASHINGTON INSURANCE CO., APPELLANT,
v.
SQUIER CORPORATION ET AL., RESPONDENTS

Order, entered on October 19, 1967, granting plaintiff's motion for reargument and, upon reargument adhering to the original decision of the court which had granted defendants' motion to change the place of trial to Erie County, unanimously reversed on the law, with $30 costs and disbursements to plaintiff, and motion for change of venue denied. 54 Misc. 2d 421.

Concur -- Stevens, J. P., Eager, Capozzoli, McGivern and Rabin, JJ.

Plaintiff, a foreign insurance company, has been authorized to transact business in New York State since June, 1872. When it originally filed its application to transact business here it was not required to, and did not, designate the county within this State in which its principal office was to be located. Such requirement still does not exist. Subdivision 4 of section 40 and section 42 of the Insurance Law provide for the issuance and contents of applications for licenses to foreign insurers. Nowhere in these sections is there any requirement for the designation of a New York office. Section 1304 of the Business Corporation Law, provides in part that an application for authority to do business in this State shall set forth "The city, incorporated village or town and the county within this state in which its office is to be located". However, section 7 (subd. 1, par [d]) of the Insurance Law specifically provides in part that section 1304 of the Business Corporation Law "shall not apply to an incorporated foreign insurer". Moreover, section 7 (subd. 1, par. [a]) of the Insurance Law provides that "If any provision of the business corporation law conflicts with any provision of this chapter, the provision of this chapter shall prevail". The general rule set forth in General Precision v. Ametek, Inc. (24 A.D.2d 757) relied upon by respondents, has no application to the instant case which, unlike General Precision, involves a foreign insurer. Since it appears that plaintiff maintains its principal office for the conduct of its business in this State in New York County, plaintiff had the right to designate this county as the place of trial. (General Acc. Fire & Life Assur. Corp. v. Allcity Ins. Co., 53 Misc. 2d 596.)

19681107

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