Bellina v. Bellina

1075 — Judgment affirmed, with costs. Memorandum: On our review of the record we conclude that the evidence fully supports the findings of the trial court that Mrs. Beilina was not acting as Mr. Beilina’s agent, that she lacked actual authority to request cancellation of the insurance on Mr. Beilina’s car and that Mr. Beilina did nothing to ratify her purported request for cancellation. Inasmuch as neither the insured nor anyone acting on his behalf effected cancellation “by mailing to the Company written notice” as provided in the policy or by transmitting an oral request (see Matter of Country-Wide Ins. Co. v Wagoner, 57 AD2d 498, revd on other grounds 45 NY2d 581), the policy was in force on the date of the accident. The equitable doctrine of apparent authority has no application here where the sole question is whether the event required by the contract for cancellation (i.e., a request by the insured) took place. That doctrine may under some circumstances serve to bind the principal (because of unauthorized actions of the agent) as though the principal had consented when, in fact, he had not (see, generally, Wen Kroy Realty Co. v Public Nat. Bank & Trust Co., 260 NY 84, 91; 2 NY Jur 2d, Agency and Independent Contractors, § 85, pp 532-533). It implies “a transaction which is itself invalid as beyond the actual authority of the agent, and a [principal] who is forbidden for equitable reasons to set up that invalidity” (2 NY Jur 2d, Agency and Independent Contractors § 85, p 533; see, generally, Wen Kroy Realty Co. v Public Nat. Bank & Trust Co., supra, p 91). When it appears that a third party has relied upon misrepresentations of the agent because of some misleading conduct of the principal, the doctrine may be invoked and the principal, though he has not consented to it, may be bound by the agent’s unauthorized promise (see Ford v Unity Hosp., 32 NY2d 464, 472-473). Here, the question is not whether Mr. Beilina should be bound by some unauthorized promise or representation made by Mrs. Beilina and relied upon by the insurance company. The question is simply whether the policy has been canceled by the insured in accordance with its provisions and the governing case law, i.e., whether the required event for cancellation — the actual request from the named insured — has occurred. Proof of cancellation requires proof of the fact that the insured has transmitted the request (either himself or through an authorized agent) and nothing more, for the sole event which can effect cancellation is the unilateral act of the insured requiring no acceptance, act in reliance, or other conduct by the insurer (see Hanover Ins. Co. v Eggelton, 88 AD2d 188, affd 57 NY2d 1020; Matter of Country-Wide Ins. Co. v Wagoner, supra; Nassau Ins. Co. v Lucas, 101 Misc 2d 1024, affd 79 AD2d 892). The proof here is that the 1076 required event for cancellation has not occurred (i.e., that Mr. Beilina has not made the request himself or through an authorized agent). That the insurer may have assumed that Mrs. Beilina was making the request on behalf of her husband (when in fact she was not) does not make it so. Thus, because the event required for cancellation had not occurred, the policy was in full force on the date of the accident (cf. Matter of Country-Wide Ins. Co. v Wagoner, supra). All concur, except Doerr and Moule, JJ., who dissent and vote to reverse and grant judgment, in the following memorandum.