Silberzweig v. New York Property Insurance Underwriting Ass'n

| N.Y. App. Div. | Oct 17, 1977

In an action on a policy of fire insurance, defendant appeals from so much of an order of the Supreme Court, Kings County, dated February 16, 1977, as denied its cross motion for summary judgment. Order modified, on the law, by deleting therefrom the provisions which deny plaintiff’s motion for summary judgment and by substituting therefor provisions granting summary judgment to the plaintiff in the amount of $11,300. As so modified, order affirmed, with $50 costs and disbursements to the plaintiff. The alleged termination of coverage, by the terms of the binder, was a "cancellation” requiring 10 days’ written notice to plaintiff mortgagee (see Insurance Law, § 168). Further, such requirement could not be fulfilled by the binder issued. "In the absence of waiver or estoppel, a notice of cancellation must be clear, unconditional, and unequivocal, and a mere expression of a purpose or intention to cancel in the future is not sufficient; that is, it must be one of actual cancellation, not of future conditional cancellation, or of doubtful meaning as to time or purpose.” (17 Couch, Insurance 2d, § 67:144, p 480; cf. Government Employees Ins. Co. v Mizell, 36 AD2d 452; see, also, 30 NY Jur, Insurance, § 730, pp 78-79.) Therefore, we conclude that the binder was not canceled prior to the loss. Since the parties have stipulated to the balance due on the mortgage and the amount of the loss, summary judgment should have been granted to the plaintiff in the amount of the loss, which amount is $11,300. Such relief may be granted by this court despite plaintiff’s failure to appeal from the portion of the order which denied his motion for summary judgment (cf. People Sav. Bank of Yonkers v County Dollar Corp., 43 AD2d 327, 334, affd 35 NY2d 836). Hopkins, J. P., Latham, Margett and Rabin, JJ., concur.