Arizona Premium Fin. Co., Inc. v American Tr. Ins. Co.
2017 NY Slip Op 09263
Decided on December 28, 2017
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on December 28, 2017
Friedman, J.P., Gische, Webber, Kahn, Singh, JJ.

654130/13

[*1] Arizona Premium Finance Company, Inc., Plaintiff-Respondent,

v

American Transit Insurance Co., Defendant-Appellant.




Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel), for appellant.

Gage Spencer & Fleming LLP, New York (William B. Fleming of counsel), for respondent.



Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 2, 2017, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint, and granted plaintiff's cross motion for summary judgment on its claim for the return of unearned premiums on 14 of 46 cancelled insurance policies, unanimously affirmed, with costs.

Plaintiff provided premium financing for 46 insurance policies under which New York City livery car drivers were insured by defendant. After the insureds defaulted on their loan payments, plaintiff sought to cancel the policies, which it had authority to do, provided, inter alia, that it gave the insureds notice (with copies to defendant). The record demonstrates that defendant received the notices of cancellation with respect to 14 of the 46 policies and therefore that plaintiff is entitled to the return of the unearned premiums on those policies. With respect to the remaining 32 policies, issues of fact whether defendant received the notices preclude summary judgment in either side's favor (see e.g. Crump v Unigard Ins. Co. , 100 NY2d 12, 16-17 [2003]).

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 28, 2017

CLERK