Anthony Sicari, Inc. v. Fireman's Insurance Co. of Newark

200 A.D.2d 542, 606 N.Y.S.2d 695, 1994 N.Y. App. Div. LEXIS 647

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 27, 1994
• Status: Published

Opinion

—Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about April 1, 1993, which denied defendant’s motion for summary judgment, unanimously affirmed, without costs.

In this action to recover for property damage under an insurance policy, defendant insurer failed to satisfy its heavy burden (see, 304 Meat Corp. v New York Prop. Ins. Underwriting Assn., 188 AD2d 382) of demonstrating that plaintiff insured willfully failed to comply with the policy provision requiring it to submit to an examination under oath in the event of a loss. Particularly in view of the brief period between the loss and the initial demand for examination, and the date by which the insured offered to appear, there was no clear demonstration of a pattern of refusal or persistent noncooperation raising a triable issue (cf., Azeem v Colonial Assur. Co., 96 AD2d 123, affd 62 NY2d 951). Concur — Sullivan, J. P., Carro, Wallach, Kupferman and Tom, JJ.