52 A.D.2d 836 | N.Y. App. Div. | 1976
In an action to enforce a contract of insurance, issued pursuant to section 167 of the Insurance Law, defendant appeals from (1) a judgment of the Supreme Court, Nassau County, entered June 7, 1974, which is in favor of plaintiff, after a nonjury trial, and (2) two orders of the same court, dated November 20, 1975 and December 2, 1975, respectively, which granted plaintiff’s motion to settle a statement in lieu of stenographic transcript. Judgment and orders affirmed, with one bill of costs to cover all appeals. The trial court properly held that the assertion of a second notice of cancellation by defendant, after the equivalent of a trial herein, was so prejudicial to plaintiff as to preclude its consideration on the merits. Moreover, since such late assertion of the existence of a notice of cancellation was conceded by defendant in its proposed stipulation of facts, there is no need to order a new trial in this case on the ground that the trial transcript was lost, through no fault of the parties. Since there was admittedly no proof adduced as to the filing by defendant of notice of the finance company’s cancellation with the Commissioner of Motor Vehicles, the first notice of cancellation was properly held to have been ineffective. Plaintiff is, therefore, entitled to judgment in his favor. Gulotta, P. J., Hopkins, Latham, Margett and Shapiro, JJ., concur.
