Zachariades v. Transcontinental Insurance

1 A.D.2d 509, 767 N.Y.S.2d 246

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 2003
• Status: Published

Opinion

In an action pursuant to Insurance Law § 3420 (b) to recover an unsatisfied judgment against the defendant’s insured, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Pizzuto, JHO), dated August 27, 2002, which, after hearing, granted the defendant’s motion to dismiss the complaint and denied their separate cross motions for summary judgment.

Ordered that the order is affirmed, with costs.

The plaintiffs commenced this action to recover upon default judgments obtained against the defendant’s insured, 3995 Restaurant Corp., after sustaining injuries on its premises on June 2, 1996. The defendant moved to dismiss the action, claiming that 3995 Restaurant Corp. cancelled its liquor liability insurance policy on June 1, 1996. After a hearing, the Supreme Court granted the defendant’s motion to dismiss the complaint and denied the plaintiffs’ separate cross motions for summary judgment.

We agree with the Supreme Court that the defendant established that the liquor liability insurance policy was effectively cancelled on June 1, 1996, at 12:01 a.m., by oral notification. The evidence adduced at the hearing was sufficient to establish that the defendant waived strict compliance with the cancellation provisions of the liquor liability insurance policy, which provided for written notice of cancellation (see Matter of Country-Wide Ins. Co. v Wagoner, 57 AD2d 498, 503 [1977], revd on other grounds 45 NY2d 581 [1978]; M & M Jewelry Creations v Hartford Fire Ins. Co., 26 AD2d 816 [1966]). The plaintiffs failed to adduce evidence sufficient to defeat the motion to dismiss and failed to establish their entitlement to summary judgment. Altman, J.E, Florio, Luciano and Rivera, JJ., concur.