Antonio Garcia, Appellant,v.Government Employees Insurance Company, Respondent.BriefN.Y.December 7, 2017To Be Argued By: Jonathan A. Dachs Time Requested: 15 Minutes Heto gorfe Supreme Court APPELLATE DIVISION — SECOND DEPARTMENT Docket No. 2015-05471ANTONIO GARCIA, Plaintiff-Respondent, against GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant-Appellant. BRIEF FOR PLAINTIFF-RESPONDENT SHAYNE, DACHS, SAUER & DACHS, LLP Attorneys for Plaintiff-Respondent 114 Old Country Road, Suite 410 Mineola, New York 11501 516-747-1100 Of Counsel: Jonathan A. Dachs Nassau County Clerk’s Index No. 4844/13 TABLE OF CONTENTS Page iiTABLE OF AUTHORITIES PRELIMINARY STATEMENT 1 COUNTER-QUESTION PRESENTED AND DETERMINATION OF THE COURT BELOW 2 COUNTER-STATEMENT OF FACTS 3 The Order Appealed From 12 POINT I 15 THE COURT BELOW PROPERLY DENIED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT. A. The Standard of Review 15 B. Defendant GEICO Failed to Meet Its Prima Facie Burden In Support of Its Motion for Summary Judgment By Eliminating All Triable Issues of Fact . . . 17 CONCLUSION 36 TABLE OF AUTHORITIES Page CASES: Allstate Ins. Co. v. Peruche, 100 AD2d 935 (2d Dept. 1984) 18 Alvarez v. Prospect Hospital, 68 NY2d 320 (1986) 16 American Surety Co. v. Rosenthal, 206 Misc. 485 (Sup. Ct. N.Y. Co. 1954) 24, 25, 30 American Transit Ins. Co. v. Wilfred, 296 AD2d 360 (1st Dept. 2002) 17 Andre v. Pomeroy, 35 NY2d 361 (1974) 15 Askey [General Acc. Fire & Life Assur. Corp.], 30 AD2d 632 26,33 Assaf v. Ropog Cab Corp., 153 AD2d 520, 521 (1st Dept. 1989) 15 Balfour MacLaine International Limited v. Atlantic Mutual Ins. Co., 85 F.3d 68, 81 (2d Circuit 1996) 27 Breed v. Ins. Co. ofN. A., 46 NY2d 351 (1978) 34 Bush v. St. Clare's Hospital, 82 NY2d 738 (1993) 16 Byrnes v. Scott, 175 AD2d 786 (1st Dept. 1991) 16 Dauman Displays, Inc. v. Masturzo, 168 AD2d 204, 205 (1st Dept. 1990) 15 Donley v. Glens Falls Ins. Co., 184 NY 107, 111 (1906) 13, 24-26, 32 Erie R. Co. v. International R. Co., 209 AD 380 (1924), affd. 239 NY 598 (1924) 21,22 -ii- First Savings and Loan Association of Jersey City, N.J. v. American Home Assurance Co., 35 AD2d 344 (1st Dept. 1970), affd. 29 NY2d 297 (1971) 29, 33-35 Garcia v. Government Employees Ins. Co., 130 A.D.3d 870, 14 N.Y.S.3d 116 (2d Dept. 2015) 1 GEICO v. Brunner, 69 AD3d 853 (2d Dept. 2010) 20 Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988) 16 Hall v. T.G. Miller & Assoc., P.C., 167 AD2d 688 (3d Dept. 1990) 17 Hantz v. Fishman, 155 AD2d 415 (2d Dept. 1989) 15 Hartol Prods. Inc. v. Prudential Ins. Co., 290 NY 44 (1943) 34 Henderson v. City of New York, 178 AD2d 129, 130 (1st Dept. 1991) 16 Lesocovich v. 180 Madison Avenue Corp., 81 NY2d 982 (1993) 16 Lesser v. Mayben Realty Corp., 181 AD2d 490 (1st Dept. 1992) 17 McLaughlin v. Thaima Realty Corp., 161 AD2d 383, 384 (1st Dept. 1990) 16 Mid City Construction Co., Inc. v. Sirius America Ins. Co. 70 AD3d 789 (2d Dept. 2010) 19 Ming v. Corbin, 142 NY 334 (1894) 26,30 Mitchell v. New York Hospital, 61 NY2d 208 (1984) 21 Mostow v. State Farm Ins. Cos., 88 NY2d 321 (1996) 34 Mumuni v. Eagle Ins. Co., 247 AD2d 315 (1st Dept. 1998) 17 -iii- Nassau Ins. Co. v. Murray, 46 NY2d 828 (1978) 18 Nationwide Mut. Ins. Co. v. Mason, 37 A.D.2d 15 (2d Dept. 1971) 13,25, 26,33 Preferred Mutual Ins. Co. v. Donnelly, 111 AD3d 1242 (4th Dept 2013), aff d., 22 NY3d 1169 (2014) 20 Press Pub. Co. v. General Acc. Fire & Life Assur. Corp. of Perth Scotland, 160 App. Div. 537, affd. 217 NY 648 26, 33 Price v. Price, 69 NY2d 8 (1986) 21 Prudential Prop, and Cas. Ins. Co. v. Pearce, 126 Misc.2d 1044 (Sup. Ct. Nassau Co. 1985), affd. on opinion below, 120 AD2d 597 (2d Dept. 1986) 23, 27, 28 Rogers v. Graves, 254 App.Div. 467 (3d Dept. 1938) 26 Rosenthal v. Security Mut. Ins. Co. ofN.Y., 28 NY2d 697(1971) 32, 33 S.J. Capelin Assoc, v. Globe Mfg. Corp., 34 NY2d 338, 341 15 Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957) 15 South Mall Constructors v. State of New York, 94 AD2d 867 (3d Dept. 1983) 21,22 State Farm Mut. Auto. Ins. Co. v. O’Brien, 120 AD3d 1252 (2d Dept. 2014) 34 State of New York v. Peerless Ins. Co., 117 AD2d 370, 373 (3d Dept. 1986) 21 State-Wide Ins. Co. v. Simmons, 201 AD2d 655 (2d Dept. 1994) 18 Strychalski v. Mekus, 54 AD2d 1068, 1069 (4th Dept. 1976) 16 -iv- Supan v. Michelfeld, 97 AD2d 755 (2d Dept. 1983) 16 Triangle Fire Protection Corp. v. Manufacturers Hanover Trust Co., 172 AD2d 658 (2d Dept. 1991) 15 Vanguard Ins. Co. [Polchlopek]), 18NY2d376 26,33 Willie v. Maier, 256 NY 465 (1931) 21 Winegrad v. New York Univ. Med. Center, 64 NY2d 851 (1985) 16 Zivitz v. Maryland Cas. Co., 192 App. Div. 83 26,33 STATUTES: 29 N.Y. Jur., Insurance §643, p. 634 25,30 43 Am. Jur.2d, Insurance, §312, p. 386 25 Vehicle and Traffic Law §313 18 TREATISES: Newman, Thomas R., New York Appellate Practice (Matthew Bender & Co., Inc.), p. 3-13 21 -v- PRELIMINARY STATEMENT This Brief is respectfully submitted by and on behalf of Plaintiff-Respondent, Antonio Garcia (“Garcia”), in opposition to the Brief for Defendant-Appellant, Government Employees Insurance Company (“GEICO”) and GEICO’s appeal from the Order of the Supreme Court, Nassau County (Murphy, J.) dated June 15, 2015, and entered in the Office of the Clerk of Nassau County on June 17, 2015, which denied GEICO’s motion for summary judgment “due to one or more factual questions that exist against the Defendant” [2, 3-6].1 For the reasons set forth more fully below, it is Garcia’s contention that where, as here, unresolved issues of fact existed as to the actual date of the purported policy cancellation, the sufficiency of the mailing and, thus, the effectiveness of the notice of cancellation, and the severability or divisibility of the policy provisions pertaining to increased coverage limits, the Order appealed from was eminently proper and correct, and, as such, should be affirmed in its entirety, with costs. 1Unless otherwise indicated, numbers in brackets refer to pages in the Record on Appeal. It should be noted that this is the second appeal taken by GEICO in this matter— the first resulting in the unanimous affirmance of the Order of the Supreme Court, Nassau County (Murphy, J.), dated December 24, 2013, which, upon GEICO’s motion for reargument of an earlier Order, dated September 27, 2013, adhered to the Court’s initial decision denying GEICO’s motion to dismiss Garcia’s instant Complaint on the grounds of lack of subject matter jurisdiction and/or statute of limitations. See Garcia v. Government Employees Ins. Co.. 130 A.D.3d 870, 14 N.Y.S.3d 116 (2d Dept. 2015). COUNTER-QUESTION PRESENTED AND DETERMINATION OF THE COURT BELOW QUESTION PRESENTED: Was Defendant’s motion for summary judgment properly denied where issues of fact were raised and not conclusively determined regarding the actual date of the purported cancellation of Defendant’s policy, the sufficiency of Defendant’s proof of proper and timely mailing of its Notice of Cancellation, and the intentions of the parties and the severability of the portions of the policy that provided an initial coverage limit of $1,000,000, which was fully paid for, and a subsequent increase of an additional $1,000,000 in coverage, which was separately billed for but not timely paid? DETERMINATIONOFTHE COURT BELOW: The court below, we believe correctly, denied Defendant’s motion for summary judgment “due to one or more factual questions that exist against the Defendant” [6]. -2- COUNTER-STATEMENT OF FACTS Although GEICO, in its Brief (as below), has included a statement of “Undisputed Material Facts,” that statement improperly contains counsel’s own characterizations of the facts, such as his assertions that certain documents and circumstances are “unambiguous” (see e.g., GEICO’s brief, at p. 11), with which GARCIA cannot, and does not agree. Moreover, GEICO’s factual recitation of the facts and the history of the relationship between GEICO and its insured, Jeanne Rakowski, commences a bit late. In fact, as demonstrated in great detail by Garcia below, the relationship between GEICO and Ms. Rakowski in connection with its Umbrella Liability Insurance policy actually began much earlier than August 29, 2005, when GEICO’s version of the story begins. It is undisputed that Ms. Rakowski first applied for a Personal Umbrella Insurance policy with GEICO via a telephone application, followed by a written application, dated November 27, 2003 [324-325], and was issued a policy as a result of that application [176-177]. That policy was actually issued on October 14, 2003, with an effective date of October 10, 2003, was assigned Policy No. covered a 2003 Land Rover automobile, and a primary residence at Beach 127th Street, Belle Harbor, New York, and carried a liability limit of $1,000,000 for an 8238, -3- annual premium of $199.00 [326-334; 181-183, 186]. The premium for that policy was paid in full by Ms. Rakowski prior to its effective date [182]. That initial policy was automatically renewed on or about August 27, 2004, to be effective from October 10, 2004 - October 10, 2005. That policy, which maintained the same policy number as the initial policy, No.ÿÿ|8238, covered the same exposures as the initial policy, and also carried a $1,000,000 liability limit, for an annual premium of $211.00, which was paid in full by Ms. Rakowski [335-345; 188-191]. Notably, the August 27, 2004 cover letter sent by GEICO to Ms. Rakowski with the2004-2005 renewal included the followingstatement: “And, if your coverage is limited to $1,000,000, you may want to consider increasing it to $2,000,000 or more. If you qualify, you may find the additional premium a worthwhile investment in protecting your assets” [335; 206-207]. During the course of the 2004-2005 policy period, in March 2005, a change was made to the policy — the addition of another automobile, a 2001 Mercedes Benz. Although the premium was initially increased to $332.00, for $1,000,000 in coverage for the two vehicles and one residence property, after the application of a premium discount, the applicable premium was reduced to $306.00, which was timely paid in full by Ms. Rakowski [346-365; 192-205]. -4- On August 29, 2005, GEICO contacted Ms. Rakowski with regard to the next renewal of her umbrella policy, No. |8238. The premium to be charged for the renewal of that policy, to be effective from October 10, 2005 to October 10, 2006, with $1,000,000 in coverage for the two automobiles and one primary residence, was $306.00 [366-374, 205, 210, 214-215, 31-32, 379]. That premium was timely paid by Ms. Rakowski prior to the effective date of the renewal and, indeed, was applied by GEICO on October 14, 2005 [211, 218, 220-221, 223, 230]. The August 29, 2005 cover letter sent by GEICO to Ms. Rakowksi with the 2005-2006 renewal included the following statement: “Consider increasing the limits of your umbrella policy up to $10 million if you believe you need increased coverage. If you qualify, you may find the additional premium a worthwhile investment in protecting your assets” [366]. On August 30, 2005, Ms. Rakowski, by telephone, requested changes to her umbrella policy -- Le., an increase in the coverage limits from $1,000,000 to |E. 14th St., Brooklyn,$2,000,000, as well as the addition of a rental property at| NY 11229, to the covered risks, and those changes were approved by GEICO [98, 233-234, 238-239, 241,298]. Ms. Rakowski testified that she understood that when she requested a change in the coverage limits, “GEICO would charge [her] an additional amount of money -5- for that additional liability limits” [emphasis added] [99]. Having made changes to the policy before (as described above), she knew that “sometimes you had to pay a little bit more money in premium” [99]. And, she stated that it was her understanding that “when [she] made these changes involving vehicles or involving liability limits, it’s still the same umbrella insurance policy, it just has new things added or subtracted from it” [100] -- he, a completely new policy would not be issued. On August 31, 2005, GEICO sent to Ms. Rakowski a notice that changes were made to the limit of the policy and that a property was added [50-59]. Although GEICO’s representative, Richard Pitts, Umbrella Product Program Manager, testified at his deposition that in response to Ms. Rakowski’s change requests, GEICO “generated a new policy document,” and/or an “amended policy contract” [240-243], it is readily apparent from a review of the pertinent document produced by GEICO [50-59] that what was actually generated by GEICO was simply “Amended Declarations” pages, reflecting the increased “limit of liability” ($2,000,000) and the additional covered property, and that, in fact, no new “policy document” was |8238); the policy periodgenerated: the Policy Number remained unchanged (| remained the same (10/10/05 to 10/10/06); and no new or different “Forms and Endorsements” were issued. Rather the applicable policy form remained the same as it had been — the PPA-1NY Personal Umbrella Liability Insurance Agreement (New -6- York) set forth in all of the prior policy documents mentioned above [329-334; 340- 345; 350-355; 360-365; 370-374; 240-245]. Significantly, with respect to the premium applicable to the “Amended Declarations,” dated August 31, 2005, as set forth on page 3 of the “Amended Declarations,” the “premium for additional coverage to second million” of $199.00 was set forth as a separate line item to be added to the previously indicated premium of $306.00 for the $1,000,000 in coverage — thus making the “total premium” $505.00 [52]. Similarly, the “GEICO’s Personal Umbrella Policy Bill,” issued on August 31, 2005 [60], separated out the amount due for the original, $1,000,000 coverage, he., $306.00, from the $199.00 due for the additional $1,000,000 in coverage, by making that exact amount the “minimum amount due.” Surely, it was not a mere coincidence that the minimum amount due was the amount for which $1,000,000 in coverage was previously purchased. Indeed, Mr. Pitts testified that GEICO’s computer system recognized the $306.00 as “the amount previously billed” [244]. The subsequent “GEICO’s Personal Umbrella Policy Bill,” issued on October 18, 2005 [61], which reflected that the $306.00 had already been paid and that it was only the $199.00 for the additional $1,000,000 in coverage that remained outstanding, furthered the impression that the $306.00 and $199.00 premiums were separate and distinct, and -7- that the coverages attributable to each such separately listed premium were severable [266-267; 32]. In this regard, Mr. Pitts testified that GEICO “break[s] out as a convenience to [its] insured which [sic] each exposure that [it] charge[s] costs them, so they can determine whether or not they want to pay that premium during that renewal time or not” [249-250]. Having failed to receive payment of the $199.00 premium for the second $1,000,000 in coverage by its October 27, 2005 due date (as stated on the October 18, 2005 bill) [61], GEICO issued to Ms. Rakowski a Notice of Cancellation, for non¬ payment of premium, dated November 4, 2005, indicating that “your insurance as indicated below” [emphasis added] was to be canceled at 12:01 standard time on May 19, 2006 [62]. Notably, the only thing “indicated below” was that the premium of $199.00 was past due, and, thus, by its own terms, it was the non-payment of that separately stated and unpaid premium that was the basis for GEICO’s purported cancellation. Mr. Pitts testified (after the fact) that had GEICO received payment of the outstanding $199.00 any time before May 19, 2006, “the policy would have continued” [267, 269]. At his deposition, Mr. Pitts, on behalf of GEICO, further testified that the Notice of Cancellation was automatically generated by GEICO’s computer system -8- [245, 259]. The computer generates a batch cycle and the billing “goes into a large file,” which then goes into the “print mail facility.” As he further explained: “Our print mail facility processes that batch file which is -- it generates our new business paperwork, our renewal paperwork, our cancellations, and they generate it and it’s mailed out. And it’s actually mailed out post office. So a cancellation notice is mailed out post office receipt secured, which we provided a copy that it was mailed forward” [260]. When asked specifically if there was any “human involvement in the mailing process,” Mr. Pitts answered, equivocally, at first, “There can be, yes” [260]. However, he thereafter stated that he did not know whether or not there was any human involvement in the mailing process at the pertinent time period herein [260], and then stated that such mailings “should have no human intervention” [268]. He explained that GEICO has machines that print the notices and “envelope them and mail them” [260-261], He did not have knowledge about whether the machine applied postage as well [261]. When asked specifically whether there was any method by which it can be insured that the letter is properly put in the envelope and properly posted, Mr. Pitts stated that “we do have certification from the United States Post Office that they received a notice for Jeanne Rakowski dated on that date” — referring to the document denominated a “Certificate of Mailing” [262-263, 63]. However, examination of that document reveals (and Mr. Pitts conceded) that: (1) there is no -9- indication thereon as to what was allegedly mailed to Ms. Rakowski; (2) there is no indication thereon as to whether postage was paid for any of the alleged mailings referenced on the “certificate,” or at all; and (3) the postmaster’s stamp is illegible at least as to the year of the claimed mailings [63, 263-265]. Despite the fact that questions were raised concerning the propriety and effectiveness of GEICO’s mailing of the Notice of Cancellation, GEICO failed to submit any evidence, including an Affidavit by the individual in charge of or with knowledge of the mailing process, concerning that important issue. In its “Defendant’s Responses to Post EBT Demands,” dated August 13, 2014 [388-391], GEICO identified GEICO employee, Donna Truslow, Output Manager, as the person “most closely fitting the description” “involved in supervising the processingof these notices of cancellation (of an umbrella policy) and their mailing.” However, GEICO did not submit an affidavit from Ms. Truslow in support of its motion. Ms. Rakowski, for her part, testified that she did not recall receiving or seeing the Notice of Cancellation prior to her EBT on June 17, 2014 [105, 113-114]. In fact, she did not even know that her policy was canceled until 10 years later, at the time of the trial in the underlying action [115]. According to Mr. Pitts, and GEICO’s “Policy Log” document [65], on May 15, 2006 — four days before the intended cancellation date — GEICO sent a “pending -10- cancellation e-mail” to Ms. Rakowski as a “warning shot,” in an effort to avoid the cancellation by obtaining payment of the outstanding balance [65,32, 239, 270-277], GEICO has failed to produce a copy of that email, and, thus, there is no way to know precisely what it said [271-272]. Although, pursuant to the terms of the Notice of Cancellation [62], the cancellation for nonpayment of premium was to be effective on May 19, 2006, Mr. Pitts testified that GEICO attempted to contact Ms. Rakowski by telephone, in what was referred to in GEICO’s “Policy Log” as a “pend canc” or “pending cancellation” call [65], in order “to try to collect a payment” [273-274; 33]. Indeed, Mr. Pitts stated that if Ms. Rakowski had answered that call and made a payment on that date — the day after the cancellation date -- the policy would have continued [274-277]. No recordings of this telephone call have been produced by GEICO, and, thus, again, there is no way to know what was said to Ms. Rakowski with regard to her deadline for payment of the outstanding premium amount. According to GEICO’s “Policy Log Inquiry” documents [392-395], and the EBT testimony of Mr. Pitts [276-282], after GEICO cancelled Ms. Rakowski’s entire policy, she called GEICO to advise that she had complained to “state agencies” and the “insurance board” about the cancellation of her umbrella policy. Obviously, Ms. -11- Rakowski was not happy with the cancellation of her entire policy simply because of her non-payment for the “second million” dollars of coverage. In addition to the foregoing, it is also important to note that in GEICO’s Reply Affirmation, dated July 15, 2013, in connection with prior motion practice in this case [396-400], at paragraph 1 thereof, GEICO’s counsel stated that the subject policy was canceled “at midnight May 19. 2006" [emphasis added] [396]; Also in his Affidavit in Support of GEICO’s motion for summary judgment, at paragraph 2 thereof, Mr. Pitts, on behalf of GEICO, stated that “that $2 million umbrella policy was cancelled for non-payment of premium at 12:01 a.m. on October 19, 2006. . . .” [emphasis added] [30]. And, in a document produced by GEICO during discovery in this action as part of the Umbrella Policy Claims File, entitled “Control File Alert,” dated May 23, 2006 — four days aftertint subject accident [401-402], GEICO’s supervisor noted that there was BI coverage of $300,000/$300,000, and “Pacesetter Plus” (umbrella) coverage of “2mm,” and that there was“ good coverage” for DOL [date of loss] [401]. The Order Appealed From The “Decision and Order,” of Hon. Jerome C. Murphy, dated June 15, 2015 [3- 6], indicates that it was rendered after careful consideration of all the facts and -12- arguments by the respective parties, including the history of the relationship between the parties recited herein dating back to October 10, 2003. Although GEICO’s counsel makes much in his Brief about the fact that the court erroneously recited the policy cancellation date and date of the accident as “August 8, 2006,” rather than May 19, 2006 [4, 16], it is obvious that such error was merely a typographical error, which in no way affected the nature or content of the court’s decision below insofar as the only pertinent fact is that the accident date and the purported cancellation date were the same. In concluding that “defendant’s summary judgment motion is denied due to one or more factual questions that exist against the defendant” [6], Justice Murphy noted that he was influenced by this Court’s prior resolution of “an analogous question” in Nationwide Mut. Ins. Co. v. Mason. 37 A.D.2d 15 (2d Dept. 1971), and the earlier decision of the Court of Appeals in Donlevv. Glens Falls Ins. Co.. 184 NY 107, 111 (1906), which involved the question of the divisibility or severability of an insurance policy, to conclude that insofar as Ms. Rakowski paid $306.00 for a $1,000,000.00 umbrella policy covering two vehicles and her primary residence for the period of October 10, 2005 - October 10, 2006, that policy was in full force and effect on the date of the accident in which Garcia was injured, notwithstanding Rakowski’s failure -13- to pay the additional $199.00 premium, which was for the sole purpose of increasing the amount of coverage from $1,000,000.00 to $2,000,000.00 [5-6]. Justice Murphy did not specifically refer to the arguments raised by Garcia regarding the failure ofGEICO’s proof of proper mailingof its Notice ofCancellation and/or its post-accident cancellation of the policy. His reference to “owe or more factual questions” suggests, however, that those unresolved issues were among the bases for the denial of GEICO’s motion for summary judgment. 2The instant appeal by GEICO ensued [2], and was promptly perfected. 2Although GEICO notes, at p. 19 of its Brief, that “the matter is on for trial and jury selection on September 8, 2015 in Nassau County Supreme Court,” GEICO’s counsel has already requested a lengthy adjournment of the trial, to which Garcia has already consented. -14- POINT I THE COURT BELOW PROPERLY DENIED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT. A. The Standard of Review It is axiomatic that “summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a material and triable issue of fact,” or “where the issue is even arguable, since it serves to deprive a party of his or her day in court.” See Andre v. Pomeroy. 35 NY2d 361 (1974); Triangle Fire Protection Corp. v. Manufacturers Hanover Trust Co.. 172 AD2d 658 (2d Dept. 1991); Hantz v. Fishman.155 AD2d 415 (2d Dept. 1989). Issue finding, not issue determination, is the purpose of a summary judgment motion. See Sillman v. Twentieth Centurv-Fox Film Corp.. 3 NY2d 395 (1957); Dauman Displays. Inc, v. Masturzo. 168 AD2d 204, 205 (1st Dept. 1990); Assaf v. Ropoe Cab Corp.. 153 AD2d 520, 521 (1st Dept. 1989). "It is not up to the court to determine issues of credibility or the probability of success on the merits, but rather whether there exists a genuine issue of fact (See S.J. Capelin Assoc, v. Globe Mfg. Corp..34 NY2d 338.341V" Hantz.supra. If material facts are in dispute, or different inferences may reasonably be drawn from the facts themselves, a motion for summary -15- judgment must be denied. Supan v. Michelfeld. 97 AD2d 755 (2d Dept. 1983). Where, as here, triable issues exist, the denial of summary judgment is mandated. It is fundamental that a defendant moving for summary judgment has the initial burden of coming forward with admissible evidence reciting the material facts and showing that the plaintiffs cause of action has no merit. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact. . . . Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." See Bush v. St. Clare's Hospital.82 NY2d 738 (1993); Lesocovich v. 180 Madison Avenue Corp..81 NY2d 982 (1993); Gilbert Frank Corp. v. Federal Ins. Co.. 70 NY2d 966 (1988); Alvarez v. Prospect Hospital. 68 NY2d 320 (1986); Winegrad v. New York Univ. Med. Center. 64NY2d 851 (1985). On a defendant's motion for summary judgment, opposed by plaintiff, the court is required to accept the pleadings as true, and its decision "must be made on the version of the facts most favorable to . . . [plaintiff] " Byrnes v. Scott. 175 AD2d 786 (1st Dept. 1991): Henderson v. City of New York. 178 AD2d 129, 130 (1st Dept. 1991); Strvchalski v. Mekus. 54 AD2d 1068, 1069 (4th Dept. 1976); McLaughlin v. Thaima Realty Corp.. 161 AD2d 383, 384 (1st Dept. 1990). -16- "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the non-moving party." Lesser v. Mavhen Realty Corp.. 181 AD2d 490 (1st Dept. 1992). The resolution of justiciable issues by trial is preferred over summary disposition. Hall v. T.G. Miller & Assoc.. P.C.. 167 AD2d 688 (3d Dept. 1990). B. Defendant GEICO Failed to Meet Its Prima Facie Burden In Support of Its Motion forSummary JudgmentBy Eliminating All Triable Issues of Fact. At the outset, as Garcia argued below, it should be noted that GEICO failed to meet its prima facie burden of demonstrating its entitlement to judgment as a matter of law simply by virtue of the conflicting evidence it put forward as to the actual effective date of its purported cancellation of coverage in this case. GEICO’s representative’s statements regarding cancellation at 12:01 a.m. onOctober 19, 2006, and that there was “good coverage” on the date of the accident [30, 401], and even its counsel’s statement that the purported cancellation went into effect at midnight on May 19, 2006 [396], he., after the subject accident, in and of themselves raised a triable issue of fact as to the critical question of whether the cancellation preceded or followed the subject accident. In Mumuni v. Eagle Ins. Co..247 AD2d 315 (1st Dept. 1998) and American Transit Ins. Co. v. Wilfred. 296 AD2d 360 (1st Dept. 2002), the -17- courts held that the term “midnight” was ambiguous, and should, therefore, be construed against the insurer. GEICO’s apparent treatment of the policy on May 20, 2006 — the day after the accident — as if the “pending cancellation” had not yet gone into effect, constitutes further indication that the policy may not, in fact, have been cancelled or terminated prior to the accident. GEICO also failed to establish, as a matter of law, the propriety and effectiveness of its mailing of the Notice of Cancellation, which the insured, Ms. Rakowski, denied receiving or reading at the pertinent time. It is well-established that proof of proper mailing of a Notice of Cancellation may be made by the presentation of a proper, post-office endorsed certificate of mailing, or, in the absence thereof, common law proof of an office practice and procedure “geared so as to ensure the likelihood that a notice of cancellation is always properly addressed and mailed.” See e.g., Vehicle and Traffic Law §313; Allstate Ins. Co. v. Peruche.100 AD2d 935 (2d Dept. 1984); Nassau Ins. Co. v. Murray.46 NY2d 828 (1978); State-Wide Ins. Co. v. Simmons. 201 AD2d 655 (2d Dept. 1994). Herein, the Certificate of Mailing produced and relied upon by GEICO [63] was/is insufficient to establish proper mailing of the Notice of Cancellation to Ms. Rakowski. As noted above, aside from the obvious fact that the date of mailing is illegible, there is, in fact, no proof or even indication on that “certificate” that proper -18- (or any) postage was, in fact, paid for each of the pieces of mail set forth therein. At best, that document, therefore, constitutes a receipt at the post office of 15 items for mailing, but it does not reflect that such items were properly paid for or posted. As such, there is no actual proof from this document of a proper mailing on November 4, 2005, as claimed by GEICO. Notably absent in this regard is any affidavit by a GEICO employee with knowledge of the mailing and/or the procedures at the post office with regard to the particular letters in question. Turning then to the alternative of common law proof of mailing, as noted above, Mr. Pitts’ EBT testimony regarding the mailing was clearly deficient, as he candidly made clear that he lacked personal knowledge of the facts, and, in any event, he did not provide sufficient information from which it could be extrapolated that GEICO’s office practices and procedures were sufficient to “ensure the likelihood” of properly addressed and mailed notices. Mr. Pitt’s bald statement in his Affidavit [32], that “The notice of cancellation was mailed in the ordinary course of business of GEICO” does not come close to meeting the requisites for such proof. See Mid City Construction Co.. Inc, v. Sirius America Ins. Co. 70 AD3d 789 (2d Dept. 2010) (insurer offered no evidence as to standard office practices for mailing disclaimer letters, and affidavit of claims representative was insufficient to raise a triable issue of fact since he did not have personal knowledge of the mailing of the disclaimer -19- letter); GEICO v. Brunner. 69 AD3d 853 (2d Dept. 2010) (Underwriter who testified at hearing failed to offer “evidence of an office [procedure] geared to insure the likelihood that [endorsements reducing the coverage limits] are always properly addressed and mailed”). Cf, Preferred Mutual Ins. Co. v. Donnelly. 111 AD3d 1242 (4th Dept. 2013), aff d.. 22 NY3d 1169 (2014) (insurer submitted evidence in admissible form “of a standard office practice or procedure designed to ensure that items are properly addressed and mailed,” thereby giving rise to a presumption that the insured received the notice. Specifically, the evidence established the procedure used by the insurer for generating notices .... In addition, the insurer submitted evidence that it placed the notices in envelopes with windows so that the address on the notice was the one used for mailing. The envelopes were then delivered to the mail room, where they were sealed and the appropriate postage was added. Thereafter, the mail was hand-delivered to the post office that was located adjacent to the insurer’s lot. The Court of Appeals held that the Fourth Department “correctly determined that the plaintiff insurer presented sufficient evidence of a regular office practice to ensure the proper mailing of notifications to insureds so as to raise the presumption that such a notification was mailed to and received by the insured. Specifically, the plaintiff insurer submitted an affidavit from an employee who had personal knowledge of the practices utilized by the insurer at the time of the alleged -20- mailing to ensure the accuracy of addresses, as well as office procedures relating to the delivery of mail to the post office.”) GEICO’s failures of proof, without more, warranted the denial of its summary judgment motion. Although, as noted above, Justice Murphy’s Order appealed from did not specifically address those issues, and, thus, did not specifically base his decision thereon, it is axiomatic that an affirmance by an appellate court may be based on a different theory from that of the trial court, or on different grounds, or on any sufficient grounds found in the evidence. Erie R. Co. v. International R. Co.. 209 AD 380 (1924), affd. 239 NY 598 (1924); South Mall Constructors v. State of New York. 94 AD2d 867 (3d Dept. 1983). It is well-settled that “[a]n appellate court need not, for affirmance, agree with the reasoning of the court below and can find that the lower court reached the right result but for the wrong reason,” and “the respondent may urge any other ground raised below and properly preserved in support of an affirmance.” Newman, Thomas R., New York Appellate Practice (Matthew Bender & Co., Inc.), p. 3-13. See Price v. Price. 69 NY2d 8 (1986) (the Court of Appeals affirmed the order appealed from, although it did not agree with the Appellate Division’s holding on every issue); Willie v, Maier. 256 NY 465 (1931); Mitchell v. New York Hospital.61 NY2d 208 ( 19841: State of New Yorkv. Peerless Ins. Co..117 -21- AD2d 370, 373 (3d Dept. 1986) (“this court may affirm on a theory different from the one previously argued or relied upon by Special Term”). Stated another way, it is axiomatic that an affirmance by an appellate court may be based on a different theory from that of the trial court, or on different grounds, or on any sufficient grounds found in the evidence. Erie R.Co. v. International R.Co.. supra: South Mall Constructors v. State of New York. supra. Denial of GEICO’s motion was and is warranted for other reasons as well. GEICO’s essential argument in support of its motion was that “there was no effective umbrella liability insurancecontract between GEICO and the insured Jeanne Rakowski with liability limits of $1,000,000 at any time in 2006 because the umbrella liability insurance contract effective October 10, 2005 through October 2006 had indemnity limits of $2 million.”3 3To the extent that this Court may find that GEICO’s purported cancellation was ineffective at the time of the accident, it would be required to find, consistent with GEICO’s position, that $2,000,000, rather than $1,000,000 in coverage existed. While Garcia would certainly accept such determination, he would be equally satisfied with a determination that the coverage was only $1,000,000. -22- That argument is based upon GEICO’s own self-serving analysis of the factual scenario surrounding the purchase and subsequent renewals of the subject policy. There is, however, another interpretation of the facts, which Garcia requested the court below to consider for the purpose of finding, at the very least, a triable issue of fact sufficient to allow this matter to go to a jury for determination. It was/is Garcia’s contention, instead, that GEICO’s purported cancellation of the entire Personal Umbrella Policy issued to Ms. Rakowski prior to the underlying accident for non¬ payment of an additional, separately billed, premium for an increase in the policy limits and additional property covered, was improper, invalid, and ineffective, and that GEICO’s insured, Ms. Rakowski, was entitled to the $1,000,000 coverage she previously paid for, notwithstanding her subsequent failure to pay the separate additional premium for the second million in coverage. As correctly observed by Justice Murphy, essentially, the issue boils down to a question of whether the policy at issue, and the coverage thereunder, as written, was/is severable or divisible. In Prudential Prop, and Cas. Ins. Co. v. Pearce. 126 Misc.2d 1044 (Sup. Ct. Nassau Co. 1985T affd. on opinion below. 120AD2d597 (2d Dept. 1986), the policy issued by the Additional Respondent, Country-Wide, originally covered a 1980 Chevrolet van (which was the vehicle involved in the accident), and a 1978 Chevrolet -23- van. The premium for those two vehicles was $1,146.00. Thereafter, two other vehicles were added to the policy -- a 1980 Chevrolet van and a 1973 Chevrolet. The additional premium for the 1980 Chevrolet van was $313.00. The additional premium for the 1973 Chevrolet was $332. The original premium of $1,146.00, covering the first two vehicles, was paid in full prior to the accident. The additional premium for the third vehicle was also fully paid. Of the balance of $332.00 for the fourth vehicle, the sum of $162 was unpaid. Country-Wide issued a Notice of Cancellation of the entire policy based on the non-payment of that $162.00 balance. In a proceeding to stay an Uninsured Motorist arbitration, Prudential argued, inter alia, that Country-Wide’s cancellation was ineffective because “Country-Wide could not cancel the entire policy covering the first three vehicles (including the vehicle involved in this occurrence) when the insured failed to pay only a portion of the additional premium for the fourth vehicle.” Referring to “[t]he law involving the severability of insurance contracts,” Justice Arthur Spatt (now, of course, on the Federal bench) noted that “No single formula has yet been devised which furnishes a test for determining in all cases what contracts of insurance are severable and what contracts are entire. Fundamentally, the question of divisibility or severability rests upon the question of intention of the parties. Donley v. Glens Falls Ins. Co.. 184 NY 107 (1906); American Surety Co. v. Rosenthal. 206 Misc. 485 (Sup. Ct. N.Y. Co. -24- 1954); 29N.Y. Jur., Insurance §643, p. 634; 43 Am. Jur.2d, Insurance, §312, p. 386. Among the factors that must be examined to discover the intention of the parties are: the entirety of the risk covered by the policy [citation omitted]; the division of premiums for separate automobiles [citation omitted]; and the special language of the contract of insurance [citation omitted].” Justice Spatt then set forth the rule in New York as to severability of insurance contracts, thusly: “In Donley v. Glens Falls Ins. Co.. p. Ill, the rule was set forth by the Court of Appeals as follows: ‘We regard it as settled that where, by the same policy, different classes of property, each separately valued, are insured for distinct amounts, even if the premium for the aggregate amount is paid in gross, the contract is severable.’ “In American Surety Company of New Yorkv. Rosenthal. supra, p. 489, the Court construed the terms of a policy applicable to one vehicle where thequestion concerned the extent of coverage and the severability of various items of coverage, as follows: ‘The policy sets forth the limits of liability against each coverage and stipulates for a separate premium for each. In other words, the risks are separately stated and the premiums for each risk are separately fixed. Clearly, therefore, the policy in suit is severably and divisible.’ “The Second Department had occasion to apply the foregoing rules to the issue of severability with regard to two vehicles on a single policy. In Nationwide Mutual Ins. Co. v. Mason.37 AD2d 15, 16, the Court was confronted with the following question of law, almost identical to the issue presented herein: -25- ‘Where a holder of a fully paid automobile liability policy subsequently requests an endorsement adding another automobile to the coverage of the policy, may the carrier cancel the entire policy when the insured fails to pay the additional premium for the added automobile?’ “The Court found that since the policy involved separate automobiles and the premium for each was separately apportioned, the contract was, therefore, severable. (Cf. Mingy. Corbin. 142 NY 334 [1894]; Matter of Rogers v. Graves.254 App.Div. 467 [3d Dept. 1938], so that the non¬ payment of the premium on one vehicle did not permit the insurer to cancel the policy on both. The Court concluded that the rule of law laid down in Donlev v. Glens Falls Ins. Co., supra, was ‘clearly applicable here, for the coverage added by the endorsement had a separate premium and was on a different automobile from the vehicle covered by the policy as theretofore in effect.’ ( Matter of Nationwide Mutual Ins. Co. v. Mason. supra, p. 19).” The Mason Court further stated that to permit the insurer to cancel not only the additional coverage for non-payment of the premium therefor but also the pre-existing basic policy for which the premium had been paid in full “would be tantamount to a forfeiture, a result which the law abhors (Zivitz v. Maryland Cas. Co.. 192 App. Div. 83: Press Pub. Co. v. General Acc. Fire & Life Assur. Corp. of Perth Scotland. 160 App. Div. 537, affd. 217 NY 648), particularly when it is remembered that in construing the terms of an insurance policy it will be given that construction which is most favorable to the insured (Matter of Vanguard Ins. Co. [Polchlopek\).18 NY2d 376; Matter of Askey [General Acc. Fire & Life Assur. Corp.\. 30 AD2d 632).” -26- Because in Pearce the policy listed each vehicle separately, with separate coverage assigned toeach vehicle and with each vehicle assigned aseparate premium, the “intention of the parties” was made clear. Accordingly, Justice Spatt concluded that the policy at issue in that case “is of the type envisioned by the aforesaid decisions,” he., it was divisible and, therefore, not cancelable in full. In Balfour MacLaine International Limited v. Atlantic Mutual Ins. Co..85 F.3d 68, 81 (2d Circuit 1996), the court recognized that “According to New York law, the severability of a contract is a question of the parties’ intent, 'to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted.’” The intention of the parties to this action to keep the original coverage limit ($1,000,000) and the increased coverage amount (a second $1,000,000) separate, distinct and divisible is manifest from the way the premiums were charged by GEICO. First of all, rather than set out the premium as a single amount, or even increase the premium for each individual item (vehicle and/or property) to reflect the increased limits, the Amended Declarations simply added a separate line item for a separate premium ($199.00) specifically attributable to the increased (extra) $1,000,000 in coverage [52]. -27- Secondly, and similarly, the initial “GEICO’s Personal Umbrella Policy Bill,” issued August 31, 2005 [60], separated out the amount due under the original policy ($1,000,000 coverage), he., $306.00, by making that exact amount the “minimum amount due” — thus strongly suggesting that the insured could pay for that coverage first, or only, and treat the remaining balance of $199.00 separately. The second “GEICO’s Personal Umbrella Policy Bill,” dated October 18, 2005 [61], reflects that the $306.00 amount had already been paid and that it was only the $199.00 premium for the additional coverage that remained outstanding. Thus, as the Declarations and Bills were written, the coverage under the policy was “susceptible of division and apportionment” (see Prudential v. Pearce. supra). It must be remembered that, as evidenced by her deposition [84-135], the insured, Ms. Rakowski, is not a sophisticated businesswoman, regularly involved in insurance issues. Moreover, as previously noted, the Notice of Cancellation [62] itself was ambiguous, and did not clearly indicate that the entire policy, rather than just the portion associated with the unpaid premium, was to be canceled. The Notice of Cancellation stated that “your insurance as indicated below” is canceled, rather than, for example, “your insurance policy is cancelled,” or “your insurance coverage is cancelled” [emphasis added], or even “your insurance is cancelled.” The “indication below” on the Notice is that the premium of $199.00 [only] was past due and that it -28- was the non-payment of that separately stated and unpaid premium that was the basis of GEICO’s cancellation. Under the circumstances, the insured could reasonably have assumed that it was only the added $1,000,000 in insurance coverage that was to be canceled for non-payment — especially since she knew that she had already paid for the original $1,000,000 in coverage. While GEICO cites and relies, as it did in its reply papers below [413-415], upon First Savings and Loan Association of Jersey City. N.J. v. American Home Assurance Co..35 AD2d 344 (1st Dept. 1970), affii 29 NY2d 297 (1971), to support its arguments herein, as Garcia noted below in anticipation of GEICO’s argument [318-323], that case is distinguishable from the instant case, and does not warrant the granting of GEICO’s motion. In First Savings and Loan. supra, the owner of a property procured a fire insurance policy in the amount of $7,000.00 at an annual premium of $140.00, which was paid. The original insurance was later increased from $7,000.00 to $15,000.00 at an additional premium of $119.00, which was not paid. The policy was canceled for “nonpayment of premium” one month prior to a fire at the premises. The question presented to the court was “whether the notice of cancellation for the stated reason of ‘nonpayment’ of premiums affects the policy to the full extent of the $15,000.00 or applies only to the portion of the $8,000.00 for which the premium was not paid.” -29- As stated by the majority in the Appellate Division, which held that the policy was not divisible and, therefore, the cancellation was valid as to the full amount of the coverage: “Fundamentally and primarily, the question of divisibility or severability rests upon the question of intention of the parties deducible from the stipulations of the contract and the rules of construction governing the ascertainment of that intention. As a general rule, a contract is entire when by its terms, nature, and purpose, it contemplates and intends that each and all of its parts and the consideration therefor shall be common each to the other and interdependent. On the other hand, the contract is considered severable and divisible when by its terms, nature, and purpose, it is susceptible of division and apportionment. (29 N.Y. Juris., Insurance §643: American Sur. Co. ofN.Y. v. Rosenthal.206 Misc. 485). ‘The contract is said to be severable when the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item or is left to be implied by law’ (Ming et al. v. Corbin. 142 NY 334, 340-341).” As the court explained, the general endorsement when the increased coverage was obtained specifically provided that it formed part of the original policy. It provided, inter alia, that “in consideration of an additional premium of $119, it is hereby understood and agreed that insurance is increased from $7,000 to $15,000.” The property insured by the policy was a single “brick apartment,” and there were “no separate items or varied items of property (e.g., real and personal) such that it might arguably be maintained that the intention of the parties applied to one category to the -30- exclusion of the other.” As the court noted, “It is clear that the parties gave a single assent to the whole transaction rather than separate assents to several things.” The dissenting justice in the Appellate Division focused on the fact that the cancellation specified “nonpayment” as the basis for the cancellation. In his view, “such ‘nonpayment’ could well indicate that the cancellation was intended to apply only to the additional portion of the coverage, $8,000, for which the premium was not paid.” Further, “If the insurer - Respondent intended to cancel the entire policy, it could have done so by omitting the ‘nonpayment’ phrase. Having chosen to place the cancellation on that specified basis, it conveyed the idea that the cancellation pertained only to the latter $8,000 coverage. If appellant had provided an additional $8,000 from another insurer, this defendant would clearly be liable under the $7,000 coverage . . . .” He also referred to the fact that “the courts do not favor forfeiture” and that “the policy, as well as the notice of cancellation, should be strictly construed against the insurer.” In affirming the majority opinion below, the majority of the Court of Appeals concluded that “the policy of insurance in question was not a severable contract and the cancellation of said policy, prior to the loss, terminated the entire contract of insurance.” In the Court’s view, the endorsement increasing the coverage limit became “as it specifically provided,” part of the original insurance contract. “The -31- endorsement increased the amount of coverage for the same property and the same risk, namely: damages sustained to the insured premises by fire.” The Court noted that upon the effective date of the endorsement, the insurer became liable, in the event of a fire, for the full amount of $15,000 even though the additional $119 premium was not paid — at least until the notice of cancellation for nonpayment of premium became effective. Moreover, thecancellation notice specifically referred to the policy in its entirety. Thus, under those circumstances, the Court held that the policy was not divisible. Notably, the Court added that “The result, of course, would be different if the subsequently added endorsement to the policy extended to the scope of the coverage to include a different type of insurance risk than that covered by the original policy [citing Rosenthal v. Security Mut. Ins. Co. of N.Y..28 NY2d 697(1971) and Donlev v. Glens Falls Ins. Co., supra. The Court also noted and relied upon the fact that the plaintiff was “a large banking institution familiar with insurance procedures” and, therefore, should not have been misled by terms of the cancellation notice. In his dissenting opinion, Judge Scileppi stated, as particularly pertinent hereto, as follows: “In my view, the fact that the insured had increased its insurance coverage to $15,000 by adding an $8,000 rider to the original $7,000 policy, and then failed to pay the premium for the additional coverage, -32- did not justify the cancellation of the entire policy for nonpayment of premiums. The original $7,000 policy and the $8,000 rider must be deemed separate and divisible. No new policy was issued when the insured sought increased protection; instead, respondent merely provided an endorsement and clearly indicated that an additional premium of $119 was required as a separate and distinct charge for additional and more comprehensive extended coverage after the issuance of the original policy. This was again recognized when respondent tendered its notice of cancellation. had received and accepted the premium for the original policy, it could not cancel that coverage for that reason. It had already been paid. Consequently, the effect of the cancellation should be limited to the additional coverage which had been sought, but not paid for. A different conclusion is unwarranted and unjust where, as here, respondent has been paid in full for the initial coverage. To allow respondent to cancel the entire policy ‘would be tantamount to a forfeiture, a result which the law abhors (Zivitz v. Maryland Cas. Co.. 192 App.Div. 83; Press Pub. Co. v. General Acc. Fire & Life Assur. Corp. of Perth. Scotland. 160 App. Div. 537, affd. 217 NY 648), particularly when it is remembered that in construing the terms of an insurance policy it will be given that construction which is most favorable to the insured (Matter ofVanguard Ins. Co. v. Polchlopek. 18 NY2d 376; Matter of Askey (General Acc.. Fire & Life Assur. Corp.). 30 AD2d 632.’ (Matter of Nationwide Mut. Ins. Co. (Mason). 37AD2d 15, 20; see also Rosenthal v. Security Mut. Ins. Co. ofN.Y.. affg. 33 AD2d 1041). Surely, if instead of endorsing the original policy, a separate policy for $8,000 had been issued, the failure to pay the premium on this additional policy would not affect the coverage under the original policy. The fact that the policy was increased by $8,000 under an endorsement, should not, in my opinion, require a different result.” Since respondent First Savings and Loan. supra, is distinguishable from the instant case for several reasons. First, the GEICO endorsement cover sheet, dated August 31, 2005, which reflects the “recent change to [the] Umbrella policy,” indicates that a change -33- was made to the coverage limit (from $1,000,000 to $2,000,000) and that “Property - Added” [51]. A careful comparison of the “original” “Renewal Declarations” (dated August 29, 2005) [368-369], and the “Amended Declarations” (dated August 31, 2005) [50-53] reveals that the latter adds an additional property, listed as “Rental,” in addition to the insured’s “Primary residence.” The absence of a premium shown as being charged for this additional property lends credence to the notion that at least some part of the separately listed (in the next page) $199.00 “Premium for Additional Coverage to Second Million” was attributable to the addition of that second property. Such being the case, unlike First Savings and Loan. supra, the policy was severable/divisible, and although the coverage for the additional property and the increased $1,000,000 in coverage was properly canceled, the original $1,000,000 remained extant. At the very least, the “Amended Declarations” is ambiguous, thereby invoking the favorable rules of construction applicable in such instances. Mostow v. State Farm Ins. Cos..88 NY2d 321 ( 1996k Breed v. Ins. Co. ofN. A.A6 NY2d 351 (1978); Hartol Prods. Inc, v. Prudential Ins. Co.. 290 NY 44 (1943); State Farm Mut. Auto. Ins. Co. v. O'Brien. 120 AD3d 1252 (2d Dept. 2014). In addition, unlike First Savings and Loan. here, there is no specific statement in the endorsement that provides that it forms a part of the original policy. -34- Finally, the arguments set forth above concerning forfeiture are particularly pertinent herein, where the unintended and unexpected result of Ms. Rakowski’s failure to pay the added premium for the additional coverage has resulted in her being severely underinsured as compared to the judgment against her, and, thus, in Garcia’s being undercompensated for thesignificantand permanent injuries he sustained in the underlying accident involving Mr. Rakowski’s motor vehicle. Rather than assuming, as has counsel for GEICO, that Justice Murphy, below, inexplicably completely ignored First Savings and Loan Ass’n. of Jersey City. N.J. v. American Home Assur. Co., supra, it is much more likely that the court below, we believe correctly, concluded, in accordance with Garcia’s arguments, that that case was distinguishable and not controlling under the distinct facts of this case. -35- CONCLUSION For all of the foregoing reasons, the Order appealed from should be affirmed in its entirety, with costs. Dated: Mineola, New York September 1, 2015 Respectfully submitted, SHAYNE, DACHS, SAUER & DACHS, LLP BY:. JONATHAN A. DACHS, ESQ. Attorneys for Plaintiff-Respondent, ANTONIO GARCIA 114 Old Country Road, Suite 410 Mineola, New York 11501 (516) 747-1100 -36- CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR §670.10.3(f) The foregoing Brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Point size: Footnote Point size: Line spacing: Times New Roman 14 14 Double The total number of words in the Brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 8,286. -37-