Employers Commercial Union Insurance Co. v. Firemen's Fund Insurance

55 A.D.2d 888, 391 N.Y.S.2d 2, 1977 N.Y. App. Div. LEXIS 10106

Opinion

Judgment, Supreme Court, New York County, entered March 5, 1976, granting summary judgment to the plaintiff and declaring in its . favor, unanimously affirmed, with $60 costs and disbursements to respondent. An automobile owned by the insured was involved in an accident, and after a decision on liability it was settled for a substantial sum. The plaintiff insurance company defended the insured and then sued to recover the amount expended in settlement and counsel fees. The defendant insurance company had originally insured the automobile involved and contends that it was off the risk at the time of the accident. The plaintiff contends that, while it had an insurance policy for the insured at the time of the accident, it did not cover the specific automobile involved. At issue is an interpretation of section 313 of the Vehicle and Traffic Law. If the defendant insurance company had terminated its coverage so that it would have been superseded. by the plaintiffs insurance contract, there would have to be either notification by the commissioner to the defendant or the filing of a notice by the defendant of termination of coverage (Form FS-4) with the Department of Motor Vehicles. There having been neither, and the plaintiff contending that it had not substituted for the defendant in the coverage of this vehicle, the liability is that of the defendant. Concur—Stevens, P. J., Kupferman, Birns, Lane and Nunez, JJ.