Matter of Progressive Northeastern Insurance Company v James Barnes

Matter of Progressive Northeastern Ins. Co. v Barnes 2006 NY Slip Op 04845 [30 AD3d 523] Decided on June 13, 2006 Appellate Division, Second 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 June 13, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
THOMAS A. ADAMS, J.P.
FRED T. SANTUCCI
ROBERT J. LUNN
MARK C. DILLON, JJ.
2005-06769 DECISION & ORDER
2005-10148

[*1]In the Matter of Progressive Northeastern Insurance Company, petitioner-respondent,

v

James Barnes, Jr., respondent; State Farm Insurance Company, proposed additional respondent-appellant, et al., proposed additional respondent. (Index No. 211/05)




James R. McCarl, Montgomery, N.Y., for proposed additional
respondent-appellant.
Nesci Keane Piekarski Keogh & Corrigan, White Plains,
N.Y. (Jason M. Bernheimer of
counsel), for petitioner-respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, State Farm Insurance Company appeals from (1) an order of the Supreme Court, Dutchess County (Brands, J.), dated June 3, 2005, which, after a framed issue hearing, granted the petition, and (2) an order of the same court dated October 5, 2005, which denied its motion for leave to renew and reargue.

ORDERED that the appeal from so much of the order dated October 5, 2005, as denied that branch of the motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated June 3, 2005, is affirmed; and it is further,

ORDERED that the order dated October 5, 2005, is affirmed insofar as reviewed; and it is further, [*2]

ORDERED that one bill of costs is awarded to Progressive Northeastern Insurance Company.

Pursuant to Vehicle and Traffic Law § 313(2)(a), State Farm Insurance Company (hereinafter State Farm) was required to file a notice of cancellation with the Commissioner of the Department of Motor Vehicles no later than 30 days following June 17, 2002, the effective cancellation date of the policy it issued to Guy F. DeSantis, a/k/a Gaetano F. DeSantis. Failure to strictly comply with this provision results in invalid termination of coverage as to third parties (see Vehicle and Traffic Law § 313[3]; Matter of Progressive N. Ins. Co. v White, 23 AD3d 477, 478). State Farm did not comply with Vehicle and Traffic Law § 313(2)(a) and, therefore, the termination of coverage was not effective with respect to the claim made by James Barnes, Jr., arising out of a May 31, 2004, accident (see Matter of Chubb Group of Ins. Cos. v Williams, 14 AD3d 561, 562; Matter of Material Damage Adj. Corp. v King, 1 AD3d 439, 440; cf. Matter of Rosenberg v Colonial Penn Ins. Co., 274 AD2d 520). Accordingly, the Supreme Court properly granted the petition to permanently stay arbitration pursuant to the uninsured motorist provision of the policy issued by Progressive Northeastern Insurance Company.
ADAMS, J.P., SANTUCCI, LUNN and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court