Submition Date 3/27/13
For plaintiff: Harry A. Cumins, Esq. Wilkofsky, Friedman, et al.
For defendant: Joshua L. Seltzer, Esq. Law Office of Max W. Gershweir
DECISION & ORDER
BARBARA JAFFE, JSC:
By notice of motion dated April 25, 2012, defendant moves pursuant to CPLR 3212 for an order dismissing the complaint. Plaintiff opposes.
Plaintiff owns a commercial property in Staten Island, and at some unspecified time, defendant issued to him an insurance policy covering damage to the property and loss of business income. (EFD 16). Sometime before April 20, 2010, defendant issued to plaintiff a renewal of the policy providing, inter alia, that it may be cancelled for nonpayment of the premium, and that defendant will "mail or deliver [its] notice of cancellation to the address shown on the policy" 15 days before the effective date of cancellation. (EFD 23). The renewal policy contains a clause providing that mortgagees may recover for loss sustained as a result of damage to the property, and that if the policy is cancelled for nonpayment of the premium, defendant will provide them with at least 10 days' written notice. (Id.).
On April 20, 2010, defendant mailed to plaintiff an invoice reflecting that his first payment was due on or before May 15, 2010 to "avoid cancellation of the policy." (Id.). Defendant received no payment, and on May 21, 2010, as reflected in an affidavit of mailing of that date, it mailed to plaintiff and his insurance broker, Nicholas Miraglia, a notice of cancellation indicating that the policy would be cancelled effective June 10, 2010 unless plaintiff paid the premium on or before that date. (EFD 19, 25). Plaintiff failed to do so, and on June 11, 2010, defendant mailed to plaintiff and Miraglia a confirmation of cancellation. (Id.).
On June 29, 2010, Miraglia sent by facsimile transmission a letter to Trans World Facilities (Trans World), an insurance broker that served as an intermediary between defendant and its insureds, reflecting that plaintiffs address had changed. (Id.). On July 7, 2010, defendant issued an endorsement altering the policy to reflect plaintiffs new address and mailed to both his old and new addresses an invoice advising that the policy had been cancelled on June 10, 2010 and that payment of the premium would not result in reinstatement of the policy. (Id.). Thereafter, the policy was never reinstated. (EFD 22).
On or about April 26, 2011, plaintiff commenced the instant action with the filing of a summons and verified complaint, alleging that on September 8, 2010, the property caught fire and sustained structural damage, resulting in the loss of business income. (EFD 17). He seeks insurance coverage for both. (Id.).
By affidavit dated March 19, 2012, Miraglia states that on June 1, 2010, he received a notice of cancellation of plaintiff s policy, that he called plaintiff immediately thereafter to inform him of it, and that he emailed plaintiff on June 18, 2010 advising of the cancellation. (EFD 20).
By affidavit dated March 21, 2012, Jonathan Gordon, Vice President of Trans World, states that Trans World first learned of plaintiff s new address from Miraglia's June 29, 2010 facsimile transmission and that he notified defendant of the change the same day. (EFD 16).
By affidavit of the same date, Ana Moreno, defendant's manager of operations, states that defendant maintains a list of mailed cancellation notices and an affidavit of mailing for each notice, and that the May 21, 2010 affidavit reflects that a cancellation notice was mailed ...