Mercer v. New York Property Underwriting Ass'n , 635 N.Y.S.2d 96 ( 1995 )

—In an action to recover on a fire insurance policy, the defendant appeals (1) from an order of the Supreme Court, Westchester County (Silverman, J.), dated September 2, 1994, which denied its motion for summary judgment dismissing the complaint, and (2) as limited by its brief, from so much of an order of the same court, dated November 29, 1994, as, upon reargument, adhered to the prior determination.

Ordered that the appeal from the order dated September 2, 1994, is dismissed, as that order was superseded by the order dated November 29, 1994, made upon reargument; and it is further,

Ordered that the order dated November 29, 1994, is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

The renewal premium for the fire insurance policy issued to the plaintiff by the defendant was due on December 4, 1992. On January 21, 1993, the day after the plaintiff’s premises were destroyed by fire, the defendant issued a notice of cancellation stating that coverage was cancelled effective December 4, 1992, for nonpayment of the premium.

The defendant’s Plan of Operation, which was adopted pursuant to Insurance Law article 54, provides that the renewal premium must be received by the due date in order to provide continuous coverage, and that coverage will be reinstated as of the date of payment if the premium is received within 90 days after the due date. The policy and the Plan of Operation both require, however, that the defendant provide a 5-day notice of cancellation for non-payment of premium.

Although the defendant maintains that the 5-day-notice-of-cancellation provision does not apply when coverage has already expired, we agree with the Supreme Court’s conclusion that the defendant is not entitled to summary judgment. The terms of the policy, the Plan of Operation, and the fact that the defendant issued a notice of cancellation despite the defendant’s contention that it did not have to do so, create an ambiguity as to whether the defendant could terminate coverage without giving 5 days notice to the plaintiff. Under the circumstances, summary judgment is inappropriate (see, e.g., Icon Motors v Empire State Datsun, 178 AD2d 463). Rosenblatt, J. P., Copertino, Friedmann and Krausman, JJ., concur.