70 A.D.2d 945 | N.Y. App. Div. | 1979
Lead Opinion
— In an action, inter alia, to declare that the defendant is obligated to provide the plaintiffs with coverage pursuant to
Dissenting Opinion
dissents and votes to affirm the judgment, with the following memorandum: The record establishes that after proper notice of cancellation pursuant to section 313 of the Vehicle and Traffic Law (see Matter of Empire Mut. Ins. Co. v Sash, 46 NY2d 828; cf. Manning v Boston Old Colony Ins. Co., 48 AD2d 838) was mailed to the plaintiffs, the automobile insurance policy in issue was effectively canceled as of May 30, 1973 for nonpayment of a premium amounting to $75.80. Nevertheless, on or about June 6, 1973 plaintiffs mailed defendant a check dated June 4, 1973 for $75, 80 cents short of the premium due. In accordance with its standard practice, the defendant immediately deposited the check before making an examination as to the status of the policy or the amount due on the premium. The $75 was not returned by the defendant until June 19, 1973, when it was sent to plaintiffs’ agent, but in the meantime it sent plaintiffs a check refunding the unearned premium of $7.67, which check was cashed, and an additional notice dated June 7, 1973 that the policy had been canceled as of May 30, 1973. On these facts, the majority holds that the defendant is estopped from asserting that the policy was validly canceled because it deposited the check for $75 and then delayed its return of the money until June 19, 1973. In order to invoke the doctrine of estoppel, it must be established that the plaintiffs relied upon the insurer’s conduct to their detriment (see, e.g. Kiernan v Dutchess County Mut. Ins. Co., 150 NY 190, 194-195; Prudential Ins. Co. of Amer. v Brown, 30 Misc 2d 147). The temporary retention of purported premiums by an insurer, standing alone, does not constitute a basis for estoppel (Travelers Ins. Co. v Pomerantz, 246 NY 63, 70-71; Metropolitan Life Ins. Co. v Blum, 7 AD2d 488, affd 9 NY2d 954). There is no evidence that plaintiffs were even aware that defendant had deposited the check for $75 until they secured a copy of the canceled check from their bank in preparation for this litigation. The majority finds significance in the fact that in its letter refunding the unearned premium the defendant spoke of reinstatement of the policy upon full payment of the premium. However, since plaintiff Vincent D’Onofrio testified that he assumed that the refund was for an overpayment on his homeowner’s policy, plaintiffs could not have relied on that letter with respect to the automobile policy. The further fact that defendant indicated that had the $75 check been sent prior to May 30, 1973 it would have been accepted although 80 cents short of the premium due also provides no solace to the plaintiffs since there is no evidence that they relied on that possibility either. Finally, it should be noted that the insurer’s retention of the premium cannot be deemed a waiver of cancellation since waiver "is essentially a matter of intention” (see Alsens Amer. Portland Cement Works v Degnon Contr. Co., 222 NY 34, 37; Metropolitan Life Ins. Co. v Blum, supra; Prudential Ins. Co. of Amer. v Brown, supra). Accordingly, I dissent and vote to affirm the judgment in favor of defendant.