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GERALDINE PEREZ v. HARTFORD ACCIDENT & INDEMNITY CO. (03/04/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


March 4, 1969

GERALDINE PEREZ, APPELLANT,
v.
HARTFORD ACCIDENT & INDEMNITY CO., RESPONDENT

Concur -- Eager, J. P., Markewich, McNally and Bastow, JJ.; Rabin, J., deceased.

This action was brought pursuant to section 167 of the Insurance Law against the alleged liability insurer of a motorist to recover the amount of a judgment awarded to plaintiff against the motorist in a personal injury action. The vehicular accident occurred on August 16, 1966. The defendant has established, however, that the policy issued by it was canceled on March 29, 1966 by due notice to the insured. An FS-4 (notice of termination of the insurance) was filed in the Department of Motor Vehicles on May 5, 1966. The "termination of insurance was unaffected by the defendant's failure to file the notice of the cancellation with the Commissioner of Motor Vehicles within 30 days after said effective date of cancellation, as required by section 313 (formerly ยง 93-c) of the Vehicle and Traffic Law". (Murry v. Allstate Ins. Co., 16 A.D.2d 958; see, also, Kyer v. General Cas. Co., 14 A.D.2d 649.) The provisions of subdivision 1 of section 576 of the Banking Law are not applicable here (cf. MV AIC v. Davidson, 56 Misc. 2d 246) and, inasmuch as the accident occurred more than ten days after the filing of the FS-4 with the Department of Motor Vehicles, the plaintiff does not come within the protection afforded by the provisions of section 347 of the Vehicle and Traffic Law. Finally, we conclude that there is no factual support for the claim of plaintiff that the defendant is estopped from denying coverage. Furthermore, subdivision 8 of section 167 of the Insurance Law does not refer to a situation as in the case at bar where coverage had terminated due to a cancellation of the policy long before the happening of the accident. (Cf. Matter of Krouner v. MV AIC, 23 A.D.2d 711, 712; McCarthy v. MV AIC, 16 A.D.2d 35, 40, affd. 12 N.Y.2d 922.)

Disposition

Order, entered July 10, 1968, modified on the law, to the extent of granting defendant's application for summary judgment, and complaint dismissed, with $50 costs and disbursements to defendant-respondent and the order is otherwise affirmed.

19690304

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