New York Court of Appeals, 1972

Capra v. Lumbermens Mutual Casualty Co.

New York Court of Appeals · Decided November 2, 1972

31 N.Y.2d 760; 290 N.E.2d 438; 338 N.Y.S.2d 437; 1972 N.Y. LEXIS 1016

Cases that cite this one

24 later published cases cite this decision.

State Farm Mutual Automobile Insurance v. Mundorf (Del. 1995)
Johnson v. McGhee (New York Supreme Court 1982)
Meutsch v. Travelers Insurance (Appellate Division of the Supreme Court of New York 1994)
Engel v. Lichterman (Appellate Division of the Supreme Court of New York 1983)
Olesky v. Travelers Insurance (Appellate Division of the Supreme Court of New York 1979)
Home Indemnity Co. v. de Martinez (Appellate Division of the Supreme Court of New York 1997)
Public Service Mutual Insurance v. Foley (Appellate Division of the Supreme Court of New York 1993)
Meutsch v. Travelers Insurance (Appellate Division of the Supreme Court of New York 1993)
Home Indemnity Co. v. Scricca (Appellate Division of the Supreme Court of New York 1989)
Eveready Insurance v. Mitchell (Appellate Division of the Supreme Court of New York 1987)
In re the Arbitration between Liberty Mutual Insurance & Griffin (New York Supreme Court 1984)
Holmes v. Utica Mutual Insurance (Appellate Division of the Supreme Court of New York 1983)
Watt v. New York City Transit Authority (Appellate Division of the Supreme Court of New York 1983)
Hanover Insurance v. Eggelton (Appellate Division of the Supreme Court of New York 1982)
State Farm Mutual Automobile Insurance v. Matthews (Appellate Division of the Supreme Court of New York 1980)
Zeman v. Zack Agency, Inc. (Appellate Division of the Supreme Court of New York 1980)
Employers Commercial Union Insurance v. Firemen's Fund Insurance (N.Y. 1978)
Government Employees Insurance v. Employers Commercial Union Insurance (Appellate Division of the Supreme Court of New York 1978)
Worrell v. Motor Vehicle Accident Indemnification Corp. (Appellate Division of the Supreme Court of New York 1977)
Hartford Insurance v. Corrigan (Appellate Division of the Supreme Court of New York 1977)
Kinahan v. Fireman's Fund American Insurance Companies (Appellate Division of the Supreme Court of New York 1976)
American Empire Insurance v. Meyer (New York Supreme Court 1976)
Nationwide Mutual Insurance v. Liberty Mutual Insurance (New York Supreme Court 1976)
Government Employees Insurance v. Employers Commercial Union Insurance (New York Supreme Court 1975)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Memorandum. The order of the Appellate Division should be reversed, without costs, the motion and cross motion for summary judgment denied and the case remitted to Supreme Court, Schenectady County, for trial. Although there is no question but that the termination of automobile insurance is unaffected by an insurer’s failure to file a notice of termination with the Commissioner of Motor Vehicles, as required by section 313 of the Vehicle and Traffic Law (see, e.g., Perez v. Hartford Acc. & Ind. Co., 26 N Y 2d 625, affg. 31 A D 2d 895), the Assigned Risk Policy issued by Lumbermens Mutual Casualty Co. would have continued in full force and effect if the insurer failed to comply with the relevant provisions of the Assigned Risk Plan. Thus, notwithstanding the fact that the policy in question bore the expiration date, April 15, 1966, and the accident took place on December 3, 1966, if the insurer is unable to demonstrate that it properly notified the insured of the action taken on the policy, it would remain liable and obligated to defend. Inasmuch as the record discloses a sharply controverted material issue of fact as to whether a 45-day notice, required by subdivision 2 of section 14 of the plan, was sent to the insured, and neither Lumbermens nor plaintiffs-appellants has made a proper evidentiary showing ip. support of the motion and cross motion (sqe Indig v. *763Finkelstein, 23 N Y 2d 728, Di Sabato v. Soffes, 9 A D 2d 297, 301), summary judgment in favor of either side is unwarranted (CPLR 3212, suhd. [b]; Sillman v. Twentieth Century-Fox, 3 N Y 2d 395, 404; Di Merma, & Sons v. City of New York, 301 N. Y. 118).

Chief Judge Fuld and Judges Bubke, Scileppi, Bergan, Breitel, Jasen and Gibson concur.

Order reversed, without costs, and the case remitted to Supreme Court, Schenectady County, for further proceedings in accordance with the memorandum herein.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.