Associates Discount Corporation, Respondent, v. Stuart E. J. Fulton, Appellant

Associates Discount Corporation, Respondent, v Stuart E. J. Fulton, Appellant. [MAJORITY] — Judgment, Supreme Court, New York County, entered August 7, 1978, granting plaintiffs motion for summary judgment is unanimously reversed, on the law, with $75 costs and disbursements of this appeal to appellant, and the motion is denied. Plaintiff, holder of a lien on a tractor trailer owned by Edward Rice, sues on an insurance contract. Rice was a leased operator for Navajo Freight Lines who could get insurance for its leased operators at a lower premium than the individual himself. Plaintiff was the named loss payee and lienholder under such a policy issued by underwriters at Lloyd’s, represented by defendant. Rice was insured from December 13, 1976, to March 1, 1977, and was issued a renewal certificate for the period March 1, 1977, to March 1, 1978. Mr. Rice’s tractor trailer was stolen on March 30, 1977. Defendant claims that the policy was canceled on March 21, 1977, by Mr. Rice. Special Term, in granting plaintiffs motion, decided that defendant had not laid bare his proof in evidentiary form: But, in searching the record we find a document dated March 21, 1977, unexplained by Mr. Rice, that establishes a prima facie defense of cancellation by the insured and therefore triable issues. If Mr. Rice, indeed, canceled coverage by the defendant, no notice to plaintiff as lienor was required. Only if Lloyd’s underwriters canceled would 10 days’ notice have been required. Concur — Kupferman, J. P., Birns, Evans, Markewich and Lupiano, JJ.