| Bloom v St. Paul Travelers Cos., Inc. |
| 2008 NY Slip Op 10112 [57 AD3d 819] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Jonathan D. Bloom et al., Appellants, v St. Paul TravelersCompanies, Inc. et al., Respondents. |
—[*1] Kornstein Veisz Wexler & Pollard, LLP, New York, N.Y. (Marvin Wexler and Daniel A.Cohen of counsel), for respondents.
In a class action, inter alia, to recover damages for breach of an insurance contract and for thereformation of an insurance contract, the plaintiffs appeal from a judgment of the Supreme Court,Rockland County (Sherwood, J.), entered April 6, 2007, which, upon an order of the same courtentered April 3, 2007, granting the defendants' motion for summary judgment dismissing thecomplaint, and denying their cross motion for summary judgment reforming a "PLUS" umbrellainsurance policy to include supplemental underinsured motorist coverage previously provided bythe defendants in a "SCOPE" umbrella insurance policy, is in favor of the defendants and againstthem dismissing the complaint.
Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstated, thedefendants' motion for summary judgment dismissing the complaint is denied, the plaintiffs'cross motion for summary judgment reforming a "PLUS" umbrella insurance policy to includesupplemental underinsured motorist coverage previously provided by the defendants in a"SCOPE" umbrella insurance policy is granted to the extent of reforming the "PLUS" insurancepolicy at issue to include supplemental underinsured motorist coverage in the amount of $25,000because of bodily injury to or death of one or more persons in any one accident until such time asthat coverage or the "PLUS" umbrella insurance policy is properly terminated, and the orderentered April 3, 2007, is modified accordingly.[*2]
The plaintiff Jonathan Bloom purchased a "SCOPE"umbrella policy of insurance issued by the defendants which provided supplemental underinsuredmotorist (hereinafter SUM) coverage. In 2001 the defendants substituted a "PLUS" umbrellapolicy, which did not provide SUM coverage, for the "SCOPE" policy. Although the defendantsmailed the plaintiffs a document entitled "Summary of Major Coverage Changes," that documentfailed to comply with the requirement of Insurance Law § 3425 (d) (3) that the "[n]otice ofintention to substitute a different policy form shall be accompanied by a full and clearcomparison of the differences between the policy form last issued and the substitute policyform." The defendants' failure to provide the requisite notice entitles the plaintiffs to reformationof the "PLUS" policy to include SUM coverage in the amount of $25,000 because of bodilyinjury to or death of one or more persons in any one accident (see Hay v Star Fire Ins. Co.,77 NY 235, 240 [1879]; Byron v Liberty Mut. Ins. Co., 63 AD2d 710 [1978];Janes v New York Cent. Mut. Ins. Co., 281 AD2d 982 [2001]; cf. Allstate Ins. Co. vYoung, 265 AD2d 278 [1999]).
Contrary to the defendants' contention, the action was timely commenced. The action isbased on a dispute arising under a contract of insurance, which seeks both its reformation and thepayment of SUM benefits under the reformed policy. The applicable statute of limitations is thusthe six-year period set forth in CPLR 213 (2) (see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775[2007]; Matter of ELRAC Inc., v Suero,38 AD3d 544 [2007]).
Motion by the respondents on an appeal from a judgment of the Supreme Court, RocklandCounty, entered April 6, 2007, to strike point I (A) of the appellants' reply brief on the groundthat it contains an argument raised for the first time on appeal. By decision and order on motionof this Court entered March 19, 2008 [2008 NY Slip Op 66850(U)], the motion was held inabeyance and referred to the Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the motion is denied. Rivera, J.P., Miller, Angiolillo and Chambers, JJ., concur.