Travelers Indemnity Co. v. Avelino

191 A.D.2d 229, 594 N.Y.S.2d 249

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered on or about June 26, 1992, denying defendant Virgilio Avelino’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Contrary to the finding of the motion court, the compulsory automobile insurance laws of this State provide only for prospective cancellation of automobile insurance policies, thereby abrogating an insurer’s common-law right to void a policy from its inception on the ground that it was obtained through fraud or misrepresentation (see, Middlesex Ins. Co. v Carrero, 103 AD2d 694, 694-695).

However, the foregoing rule is designed to protect innocent victims of motor vehicle accidents, and the prohibition against ab initio cancellation of policies does not bar this action where it is alleged that the defendant claimant himself participated in the fraudulent issuance of the policy. Accordingly, defendant’s motion for summary judgment dismissing the complaint seeking declaratory relief was properly denied. Material questions of fact remain as to his complicity. Concur — Ellerin, J. P., Wallach, Asch and Rubin, JJ.