YORK v. ALLSTATE INDEMNITY COMPANY

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

Randy YORK, appellant, v. ALLSTATE INDEMNITY COMPANY, respondent.

Decided: June 28, 2004

MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, BARRY A. COZIER, and PETER B. SKELOS, JJ. Richard S. Gershman & Assoc., P.C., Garden City, N.Y., for appellant. Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo and Amy M. Kramer of counsel), for respondent.

In an action to enforce a judgment against an insurance carrier, the plaintiff appeals from an order of the Supreme Court, Kings County (Silverman, J.H.O.), dated August 5, 2003, which, after a hearing, denied his motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The initial burden of demonstrating a valid cancellation of a policy is on the insurance company which disclaimed coverage (see DTC Rest. v. Public Serv. Mut. Ins. Co., 302 A.D.2d 349, 753 N.Y.S.2d 892;  Matter of State Farm Mut. Auto. Ins. Co. v. Morales, 207 A.D.2d 546, 615 N.Y.S.2d 936;  Matter of State Farm Mut. Auto. Ins. Co. v. Cherian, 202 A.D.2d 434, 608 N.Y.S.2d 708).   An insurance carrier may effectively cancel its policy “by mailing a notice of cancellation to the address shown on the policy, provided that it submits sufficient proof of mailing, regardless of whether the notice is actually received by the insured” (Makawi v. Commercial Union Ins. Co., 244 A.D.2d 533, 664 N.Y.S.2d 470;  see M. Grabie Woolen Co. v. First State Ins. Co., 249 A.D.2d 280, 671 N.Y.S.2d 287;  Pressman v. Warwick Ins. Co., 213 A.D.2d 386, 623 N.Y.S.2d 306).   Here, the defendant's proof that it mailed a copy of the notice of cancellation to the address shown on the insured's signed application established that it effectively canceled the subject insurance policy (cf. Bindler v. Brown, 133 A.D.2d 602, 519 N.Y.S.2d 708).   The plaintiff does not contest the fact that the notice of cancellation was mailed to the address shown on the insurance policy but contends that the address contained on the policy was incorrect.   Regardless of whether or not the address on the policy was the correct address of the insured, this would not invalidate the notice of cancellation, as the carrier was not notified that the address shown on the policy was incorrect (see Pressman v. Warwick Ins. Co., supra;  Olesky v. Travelers Ins. Co., 72 A.D.2d 924, 422 N.Y.S.2d 201).

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