Schleimer v. Empire Mutual Insurance

Appellate Terms of the Supreme Court of New York

Schleimer v. Empire Mutual Insurance

71 Misc. 2d 1014, 337 N.Y.S.2d 872, 1972 N.Y. Misc. LEXIS 1472

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 13, 1972

StatusPublished

Cited by5 cases

This text of 71 Misc. 2d 1014 (Schleimer v. Empire Mutual Insurance) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schleimer v. Empire Mutual Insurance, 71 Misc. 2d 1014, 337 N.Y.S.2d 872, 1972 N.Y. Misc. LEXIS 1472 (N.Y. Ct. App. 1972).

Pincite

Opinions

Per Curiam.

The issue in this case is whether an insurer of an automobile is under a duty to give notice to a party named as loss payee ” of cancellation of the policy.

A party so designated has generally been considered to be a mere appointee with the right to receive the proceeds of the loss to the extent of his interest. Under a limited loss payable clause the rule is that if the policy is not collectible by the insured, the appointee cannot recover (5A Appleman, Insurance Law and Practice, § 3335, pp. 143, 144, 146). There are, of course, loss payable clauses which more fully protect the interests of the payee but, in this case, the designation was in a binder in which the plaintiff was only described as loss payee. We cannot hold that this plaintiff is entitled to the same protection as a mortgagee under a policy containing the standard mortgagee clause since notice must be and is required under that clause (Insurance Law, § 168).

In th@ absence of either contractual or statutory protection, the loss payee cannot recover unless the named insured had a viable policy and could collect the proceeds (Eastside Garage v. New Brunswick Fire Ins. Co., 198 App. Div. 408).

The judgment should be reversed with $30 costs and the complaint dismissed.

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Per Curiam.

The issue in this case is whether an insurer of an automobile is under a duty to give notice to a party named as loss payee ” of cancellation of the policy.

A party so designated has generally been considered to be a mere appointee with the right to receive the proceeds of the loss to the extent of his interest. Under a limited loss payable clause the rule is that if the policy is not collectible by the insured, the appointee cannot recover (5A Appleman, Insurance Law and Practice, § 3335, pp. 143, 144, 146). There are, of course, loss payable clauses which more fully protect the interests of the payee but, in this case, the designation was in a binder in which the plaintiff was only described as loss payee. We cannot hold that this plaintiff is entitled to the same protection as a mortgagee under a policy containing the standard mortgagee clause since notice must be and is required under that clause (Insurance Law, § 168).

In th@ absence of either contractual or statutory protection, the loss payee cannot recover unless the named insured had a viable policy and could collect the proceeds (Eastside Garage v. New Brunswick Fire Ins. Co., 198 App. Div. 408).

The judgment should be reversed with $30 costs and the complaint dismissed.

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Bluebook (online)

71 Misc. 2d 1014, 337 N.Y.S.2d 872, 1972 N.Y. Misc. LEXIS 1472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schleimer-v-empire-mutual-insurance-nyappterm-1972.

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