Opinion
March 15, 1976
In an action inter alia for a judgment declaring that a certain policy of insurance issued by defendant to plaintiff was in effect on August 22, 1973, the date of an automobile accident involving the plaintiff, she appeals from a judgment of the Supreme Court, Nassau County, entered March 27, 1975, which, after a nonjury trial, declared that defendant had effectively terminated the policy prior to the date of the accident. Judgment reversed, on the law and the facts, with costs, and it is declared that the subject policy of insurance issued by defendant to plaintiff was in full force and effect on August 22, 1973 and that plaintiff is entitled to full protection under said policy. The essential issue raised on this appeal is whether defendant met its burden of proof as to the mailing of a notice of cancellation for nonpayment of a premium to plaintiff. Upon all of the evidence adduced at the trial we conclude that the proof was insufficient to establish that the notice had been sent and that Trial Term's finding to the contrary was against the weight of the evidence (see Capra v Lumbermen's Mut. Cas. Co., 43 A.D.2d 986). Hopkins, Acting P.J., Margett, Rabin, Shapiro and Hawkins, JJ., concur.