35 Misc. 2d 625 | N.Y. Sup. Ct. | 1962
Plaintiffs move for summary judgment. The defendant issued to the plaintiff (Clayton) a policy of automobile liability insurance. Universal Rockville Corp. financed the payment of premium and plaintiff’s agreement with
“ Cancellation of insurance contract upon default. 1. When a premium finance agreement contains a power of attorney or other authority enabling the premium finance agency to cancel any insurance contract or contracts listed in the agreement, the insurance contract or contracts shall not be cancelled unless such cancellation is effectuated in accordance with the following provisions:
“ (a) Not less than ten days unconditional written notice be served upon the insured or insureds shown on the premium finance agreement that his or their insurance contract or contracts shall be cancelled. The exact time and date of the cancellation must be set forth in such notice.
“ (b) Service of the notice by mail shall be effective provided that the notice is mailed to the address of the insured or insureds shown on the premium finance agreement and that at least three days for mailing such notice is added to the ten day notice period.”
It is plaintiff’s contention that such notice did not afford to bim 13 full days of notice of cancellation of the liability policy in accordance with the statute. Defendant concedes that under the provisions of the General Construction Law the day of mailing would be excluded from the computation as one of the 13 days so that plaintiff would be entitled to the declaratory relief sought by this action if it were proven as alleged that the date of mailing was October 13,1960. The defendant argues that there is nothing contained in the moving papers but a statement on information and belief as to the time of mailing and therefore there is no competent proof to enable the plaintiff to prevail at this time. It happens that on October 28, 1960, the vehicle was involved in a collision as a result of which the plaintiffs sustained injuries. The purpose of the action is to have judgment declaring that the notice of cancellation is of no force and effect and that the policy continued in force and effect on October 26, 1960, and on October 28, 1960.
Accordingly, the motion for summary judgment will be granted. Settle order on notice.