Dedvukaj v. Allstate Insurance

— Order of the Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about July 18, 1989, which denied plaintiffs motion for summary judgment as against defendant Public Service Mutual Insurance Company, granted the cross-motion by Public Service Mutual for summary judgment and denied the cross-motion by defendant Allstate Insurance Company for summary judgment, is affirmed, without costs or disbursements.

The facts involved in this case are well described in the dissenting opinion. Moreover, as the dissent has aptly observed, plaintiffs "flat” cancellation of the policy issued by defendant Public Service Mutual Insurance Company was valid even after the occurrence of an insurable accident since the rights of a third party had not then been adversely affected (Cosmopolitan Mut. Ins. Co. v Lumbermen’s Mut. Cas. Co., 20 NY2d 145).

However, contrary to the view expressed by the dissent, we believe that the cross-motion for summary judgment by defendant Allstate Insurance Company was appropriately denied. In that regard, plaintiff, the owner of certain garden apartments in Brooklyn, alleges that on December 26, 1984, he discussed with defendant Jim Bandelli, an agent for Allstate, whether he should replace his existing policy with Public Service and, at that time, Bandelli stated that his new coverage with Allstate would be effective immediately. Allstate denies that any such representation was made, claiming instead that plaintiff first contacted Bandelli on November 8, 1984 to solicit a price citation for general liability and fire insurance for the premises in question. Thereafter, Bandelli purportedly obtained a verbal quotation which he transmitted to plaintiff on several occasions during the latter part of December of 1984, but plaintiff, it is asserted, advised that he was waiting to hear from Public Service with respect to what that company would charge in order to renew the existing contract. Allstate insists that it did not provide an insurance policy to plaintiff in December of 1984 and that, indeed, he did not formally request coverage until February 28, 1985, more than a month after Anthony Lino supposedly slipped and fell on a sidewalk adjacent to plaintiffs property. It should be noted that plaintiff is not seeking to vary through the introduction of parol evidence the terms of the written contract issued by Allstate but merely claims that coverage commenced prior thereto as a result of the representations made to him by Bandelli. Accordingly, the Supreme Court appropriately determined that there are disputed questions of fact concerning whether Allstate’s agent had informed plaintiff that the company’s coverage was effective as of December of 1984 and whether, if it were ultimately found that he had made such a representation, Bandelli possessed the requisite apparent authority to bind his principal. Concur — Milonas, Kupferman and Rubin, JJ.