Opinion
July 15, 1994
Present — Green, J.P., Balio, Fallon, Doerr and Boehm, JJ.
Defendant submitted evidentiary material sufficient to demonstrate that it mailed a notice of cancellation to the named insureds at the only address shown on the policy at the time of the mailing (see, Vehicle and Traffic Law § 313 [a]). There is no requirement that defendant show that the insureds actually received the notice (see, Hughson v. National Grange Mut. Ins. Co., 110 A.D.2d 1072, on rearg 113 A.D.2d 1031, appeal dismissed 67 N.Y.2d 647; Olesky v. Travelers Ins. Co., 72 A.D.2d 924, 925).
We reject plaintiff's contention that cancellation of the policy was ineffective as a matter of law because defendant failed to notify the Commissioner of Motor Vehicles within 30 days of the effective date of cancellation (see, Vehicle and Traffic Law § 313). Prior to amendment of subdivision (3) of that section in 1981 (see, L 1981, ch 569, § 5), it was settled law that the failure to notify the Commissioner within the 30-day period did not affect cancellation of the policy, even with respect to third persons (see, Capra v. Lumbermens Mut. Cas. Co., 31 N.Y.2d 760, 762; Olesky v. Travelers Ins. Co., supra, at 925; Government Empls. Ins. Co. v. Employers Commercial Union Ins. Co., 62 A.D.2d 123, 125). The 1981 amendment, however, expressly stated that a cancellation of the policy would not be effective "with respect to persons other than the named insured" until the notice was filed with the Commissioner, unless the notice was filed within the 30-day period (L 1981, ch 569, § 5). Courts interpreting that amendment uniformly held that, insofar as third persons were concerned, where the insurer failed to notify the Commissioner within the 30-day period, an automobile insurance policy was not cancelled until the notice was filed with the Commissioner (see, e.g., Matter of Eveready Ins. Co. v. Wilson, 180 A.D.2d 796; Matter of Prudential Prop. Cas. Ins. Co., 120 A.D.2d 736). Although legislation has been passed repealing the 1981 amendment and reinstating Vehicle and Traffic Law § 313 in its entirety as it existed prior to the 1981 amendment (see, L 1983, ch 781, § 15), the effective date of that legislation has been deferred to January 31, 1997 (see, L 1986, ch 351; L 1991, ch 319). We note that plaintiff has failed to controvert defendant's allegations that the notice of cancellation was filed with the Commissioner of Motor Vehicles prior to the subject accident.
An insurer may waive its right to assert the defense of cancellation by engaging in conduct that is inconsistent with such cancellation (see, Government Empls. Ins. Co. v. Cusi, 163 A.D.2d 918; American Mut. Ins. Co. v. Klein, 84 Misc.2d 1064, 1070-1071, affd 54 A.D.2d 747). Therefore, a factual issue exists whether defendant, after its attempted cancellation of the policy, settled and paid a property damage claim arising out of the same accident.
We have reviewed the remaining contentions raised by plaintiff on his cross appeal and find them to be without merit. Because factual issues exist, Supreme Court properly denied the motion and cross motion for summary judgment.