80 East 116th Street Corp. v. Galaxy Insurance

249 A.D.2d 168, 671 N.Y.S.2d 257, 1998 N.Y. App. Div. LEXIS 4427

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Fern Fisher-Brandveen, J.), entered on or about March 17, 1997, which, in an action to recover on a fire insurance policy, granted defendant insurer’s motion to confirm, and denied plaintiff insured’s cross motion to disaffirm, a Referee’s report recommending dismissal of the action for noncooperation, unanimously affirmed, with costs.

Plaintiff’s attorney’s letter of October 1, 1993 together with his testimony at the hearing admitting receipt of proof of loss forms supports the Referee’s finding that defendant’s letter to plaintiff’s attorney of September 23, 1993 demanding an examination under oath had enclosed the two blank proof of loss forms referred to therein. Plaintiffs failure to timely file the proofs of loss within 60 days after receiving the blank forms and defendant’s demand is a complete defense to the action (Marino Constr. Corp. v INA Underwriters Ins. Co., 69 NY2d 798), as was its refusal to submit to an examination under oath, its offer to participate in an examination before trial in this action not being a substitute therefor (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d 835, affg 76 AD2d 759). Delivery of the demand to plaintiff’s attorney, who was also a shareholder and officer of plaintiff, constituted delivery to plaintiff (see, Pioneer Ins. Co. v Deleo, 167 AD2d 795, 797). We have considered plaintiff’s remaining contentions and find them to be without merit. Concur — Milonas, J. P., Ellerin, Tom, Mazzarelli and Saxe, JJ.