Opinion
Argued June 11, 1975
Decided June 26, 1975
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOHN P. DONOHOE, J.
Bernard Meyerson for appellant.
Richard L. Magro for defendant-respondent.
Leon A. Lauterbach for plaintiff-respondent.
Order affirmed, with costs, on the opinion by Mr. Justice JAMES D. HOPKINS at the Appellate Division. Question certified answered in the affirmative. Of course, upon a trial and if within the pleadings, defendant insurer is free to establish, if it can, that the policy was not cancelable by it under section 167-a of the Insurance Law. The present record provides no basis to establish this contention made for the first time in the reply brief submitted by the insurer. In so noting, the court is not in a position to consider the effect, if any, of such cancelability.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE.