Alpha Auto Brokers, Ltd. v. Continental Insurance

214 A.D.2d 629, 625 N.Y.S.2d 931, 1995 N.Y. App. Div. LEXIS 4293

Opinion

In an action to recover moneys under a fire insurance policy, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Roberto, J.), dated November 24, 1993, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the defendants’ motion for summary judgment dismissing the complaint is denied, and the complaint is reinstated.

Contrary to the determination of the Supreme Court, we find that the defendant insurance company has not sustained its heavy burden of proving that the plaintiffs willfully refused to participate in an examination under oath and to produce certain requested documents in violation of the insurance policy (see generally, Argento v Aetna Cas. & Sur. Co., 184 AD2d 487). Rather, a question of fact as to the reasonableness of the plaintiffs’ failure to appear for the examination and to produce the requested documents has been presented, precluding summary judgment. Sullivan, J. P., Miller, Copertino, Joy and Friedmann, JJ., concur.