Eagle Insurance v. Liberty Mutual Insurance

—In an action for a judgment declaring that the defendant Liberty Mutual Insurance Company improperly cancelled an insurance policy, the defendant Liberty Mutual Insurance Company appeals from a “supplemental” judgment of the Supreme Court, Nassau County (McCarty, J.), entered October 22, 1998, which awarded the plaintiff the principal sum of $743.75 as and for costs expended by the plaintiff in the action. Ordered that the supplemental judgment is affirmed, with costs. 348 The arguments raised on this appeal relate to a prior judgment entered March 11, 1998, which declared, inter alia, that the defendant Liberty Mutual Insurance Company (hereinafter Liberty Mutual) was required to defend its insured with regard to an underlying accident. Liberty Mutual did not appeal from that judgment, but rather from a subsequent supplemental judgment which merely awarded costs to the plaintiff. Accordingly, the arguments raised on this appeal are not properly before this Court. In any event, and contrary to its arguments, Liberty Mutual was not authorized to cancel its policy of automobile liability insurance retroactively (see, e.g., Teeter v Allstate Ins. Co., 9 NY2d 655; Aetna Cas. & Sur. Co. v O’Connor, 8 NY2d 359; Aetna Cas. & Sur. Co. v Garrett, 31 AD2d 710, affd 26 NY2d 729; DiDonna v State Farm Mut. Auto. Ins. Co., 259 AD2d 727; Matter of Interboro Mut. Indem. Ins. Co. v Cermak, 187 AD2d 513; Mooney v Nationwide Mut. Ins. Co., 172 AD2d 144; Fireman’s Fund Ins. Co. v Corcoran, 156 AD2d 167; Matter of Liberty Mut. Ins. Co. v McClellan, 127 AD2d 767). There is no proof in the present case that the pedestrian who was injured as a result of the accident was a participant in the fraud which allegedly induced Liberty Mutual to issue its policy. Therefore, the cases relied upon by Liberty Mutual (see, Travelers Indem. Co. v Avelino, 191 AD2d 229; Taradena v Nationwide Mut. Ins. Co., 239 AD2d 876) are inapposite. Joy, J. P., Goldstein, Mc-Ginity and Feuerstein, JJ., concur.