IN RE: Robin WILSON (1997)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Robin WILSON, Petitioner-Respondent, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, et al., Respondents-Respondents, Allcity Insurance Company, Appellant, New York Automobile Insurance Plan, Intervenor.

Decided: September 22, 1997

Before SANTUCCI, J.P., and JOY, KRAUSMAN and FLORIO, JJ.

Honculada & Shillin, New York City (Beth I. Shillin and John A. Cannistraci, of counsel), for appellant. Rivkin, Radler & Kremer, Uniondale, (Evan H. Krinick, of counsel), for respondent-respondent American Home Insurance Company. Morrison Cohen Singer & Weinstein, L.L.P., New York City (Martin J. Hertz, Arthur I. Ciampi, and Catherine F. Duggan, of counsel), for intervenor New York Automobile Insurance Plan. Short & Billy, P.C., New York City (Skip Short, of counsel), for Eagle Insurance Company, amicus curiae.

Motion by the appellant Allcity Insurance Company for leave to reargue an appeal from an order of the Supreme Court, Kings County (Alfano, J.H.O.), dated April 20, 1995, which was determined by decision and order of this court dated November 4, 1996.

Upon the papers filed in support of the motion and the papers filed in relation thereto, it is

ORDERED that the motion is granted, and upon reargument, the decision and order of this court dated November 4, 1996 (233 A.D.2d 334, 649 N.Y.S.2d 184), is recalled and vacated, and the following decision and order is substituted therefor:

In a proceeding, inter alia, pursuant to Insurance Law article 52 to determine the rights of the parties under certain insurance policies, Allcity Insurance Company appeals from an order of the Supreme Court, Kings County (Alfano, J.H.O.), dated April 20, 1995, which, inter alia, determined that it provided coverage to a vehicle owned by Violetta Isnard at the time of the subject accident.

ORDERED that the order is affirmed, with costs.

The appellant Allcity Insurance Company (hereinafter Allcity) contends that it properly cancelled a liability insurance policy issued to Violetta Isnard by filing a notice of termination with the Commissioner of Motor Vehicles in accordance with Vehicle and Traffic Law § 370. We disagree. Although the record discloses that the Isnard vehicle was a livery cab governed by the financial security provisions of Vehicle and Traffic Law § 370, here Allcity additionally elected to send its insured a notice of cancellation in purported compliance with Vehicle and Traffic Law § 313, which specifies the format and content of notices of cancellation of an owner's policy of automobile liability insurance. Since the additional notice could have caused the insured confusion over her duties and obligations under the financial security provisions of the Vehicle and Traffic Law, the Supreme Court properly concluded that Allcity's purported termination was ineffective.

MEMORANDUM BY THE COURT.

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