| Tobias v Liberty Mut. Fire Ins. Co. |
| 2010 NY Slip Op 08558 [78 AD3d 928] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Del K. Tobias, Respondent, v Liberty Mutual FireInsurance Company, Appellant, et al., Defendants. |
—[*1] Lloyd Somer, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant LibertyMutual Fire Insurance Company appeals, as limited by its brief, from so much an order of theSupreme Court, Kings County (Schmidt, J.), dated October 21, 2009, as denied its motion forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
"The insurer has the burden of proving the validity of its timely cancellation of an insurancepolicy" (Badio v Liberty Mut. Fire Ins.Co., 12 AD3d 229, 229 [2004]). In moving for summary judgment, the defendantLiberty Mutual Fire Insurance Company (hereinafter Liberty Mutual) demonstrated its primafacie entitlement to judgment as a matter of law by submitting evidence establishing that theplaintiff received a cancellation notice from Liberty Mutual (see Nassau Ins. Co. vMurray, 46 NY2d 828, 829-830 [1978]; Residential Holding Corp. v Scottsdale Ins.Co., 286 AD2d 679, 680 [2001]; Matter of State-Wide Ins. Co. v Simmons, 201AD2d 655, 656 [1994]). However, in opposition, the plaintiff submitted evidence raising a triableissue of fact as to the validity of such cancellation—specifically, whether Liberty Mutualproperly cancelled her policy for failure to pay the insurance premium (see Zurruz RealtyCorp. v Calvert Ins. Co., 228 AD2d 267 [1996]; Brody Truck Rental v Country Wide Ins.Co., 226 AD2d 205 [1996]; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]).
Further, contrary to Liberty Mutual's contention, the doctrine of judicial estoppel isinapplicable. Under the doctrine of judicial estoppel, or estoppel against inconsistent positions, aparty is precluded from inequitably adopting a position directly contrary to or inconsistent withan earlier assumed position in the same action or proceeding (see Matter of Hartsdale Fire Dist. v Eastland Constr., Inc., 65 AD3d1345, 1348 [2009]). The plaintiff's contention that several parties may have contributed tothe allegedly improper cancellation of her insurance policy did not constitute the adoption ofinconsistent positions (see Bergman v Indemnity Ins. Co. of N. Am., 275 AD2d 675, 676[2000]; cf. Secured Equities Invs. v McFarland, 300 AD2d 1137 [2002]).
Accordingly, the Supreme Court properly denied Liberty Mutual's motion for summary [*2]judgment dismissing the complaint insofar as asserted against it.Rivera, J.P., Chambers, Austin and Sgroi, JJ., concur.