Liberty Mutual Insurance v. Lene , 617 N.Y.S.2d 38 ( 1994 )

In a proceeding pursuant to CPLR article 75 for a permanent stay of arbitration, the appeal is from an order of the Supreme Court, Queens County (Kassoff, J.), dated February 19, 1993, which granted the petition.

Ordered that the order is affirmed, with costs.

The appellant, who was involved in an accident while driving a vehicle owned by the insured, contends that the insured’s assigned risk livery policy was in effect at the time of the accident. He asserts that the insurance carrier’s purported cancellation was invalid because it failed to give notification to the insured of the right to appeal pursuant to the New York Automobile Insurance Plan § 19 (hereinafter the Plan). He further claims that this notice was required because the insurance carrier cancelled the policy pursuant to Plan § 18 (2) (1) which permits cancellation on the ground that the insured "is not or ceases to be eligible”. We disagree and affirm.

The insurance carrier’s decision to opt out of the Plan during the restructuring transition period and to cancel the policy pursuant to Plan § 24 (L) (1) rendered the provisions of sections 18 and 19 inapplicable. Therefore, the insurance carrier was not required to provide notice of the right to appeal pursuant to Plan § 19. Bracken, J. P., Balletta, Copertino and Hart, JJ., concur.