

Matter of State Farm Fire & Cas. Co. v Clark (2017 NY Slip Op 09250)





Matter of State Farm Fire & Cas. Co. v Clark


2017 NY Slip Op 09250


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

Acosta, P.J., Richter, Mazzarelli, Andrias, Gesmer, JJ.


5292N 260125/14

[*1] In re State Farm Fire & Casualty Company, Petitioner-Respondent,
vJames W. Clark, et al., Respondents, 21st Century Assurance Company, Respondent-Appellant.


Burrati Rothenberg & Burns, Melville (Mitchell E. Pak of counsel), for appellant.
Martin, Fallon & Mullè, Huntington (Richard C. Mullé of counsel), for respondent.

Order and judgment (one paper), Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about August 3, 2016, which granted the CPLR article 75 petition and permanently stayed the subject uninsured motorist arbitration, unanimously affirmed, without costs.
The hearing court properly found that additional respondents Olga Leon-Lobello and Santo Lobello were insured by additional respondent 21st Century Assurance Company on the date of the subject accident. 21st Century did not show that it timely mailed the requisite renewal documents to the Lobellos (see Weathers v Hartford Ins. Group , 77 NJ 228, 234-235 [1978]; Lopez v N.J. Auto. Full Ins. Underwriting Assn. , 239 NJ Super 13, 24 [NJ App Div 1990], cert denied  122 NJ 131 [1990]; NJAC 11:3-8.3[b]).
Even assuming that 21st Century had demonstrated that it mailed the requisite documents, it is undisputed that the Lobellos paid the premium within the policy coverage period, and six days prior to the accident. It is also undisputed that the Lobello's promptly notified 21st Century of the accident, and that 21st Century did not disclaim coverage until a day later. Moreover, 21st Century did not refund the premium payment until nearly two weeks after the accident. Under these circumstances, 21st Century's acceptance of the Lobello's premium estops them from denying coverage (see Cervone v N.J. Auto. Full Ins. Underwriting Assn. , 239 NJ Super 25, 29 [NJ App Div 1990]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 28, 2017
CLERK


