West v. Country Wide Insurance

The plaintiff, who was allegedly injured as the result of an automobile accident on May 5, 1977, instituted this action against his insurer to recover no-fault medical benefits, basic economic loss benefits, and uninsured motorist benefits. After issue was joined but before any discovery was held, the defendant moved for summary judgment dismissing the plaintiff’s complaint on the ground that the plaintiff failed to provide it with timely written notice of the accident. The plaintiff cross-moved for summary judgment on the ground that the defendant, who had canceled the plaintiff’s insurance policy prior to the accident, but conceded in its moving affirmation that the cancellation was subsequently found not to be effective, had waived its right to notice of the accident.

Special Term granted the plaintiff’s cross motion for summary judgment on the issue of liability, apparently on the ground that the defendant had waived written notice of the accident. However, our review indicates that the present record is extremely vague and inconclusive concerning many basic factual issues. Absent from the record are, among other things, a copy of the relevant provisions of the insurance policy, and information concerning the allegedly uninsured motorist, the circumstances of the accident, and the cancellation of the policy. Consequently, neither the plaintiff nor the defendant is entitled to summary judgment at this juncture.

We have not considered the defendant’s other contentions on appeal, which were not raised at Special Term. Lazer, J. P., Niehoff, Lawrence and Kooper, JJ., concur.