Bydeskuthy v. Hanover Insurance

229 A.D.2d 371, 644 N.Y.S.2d 783, 1996 N.Y. App. Div. LEXIS 7609

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1996
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of an insurance policy, the defendants appeal from an order of the Supreme Court, Dutchess County (Hillery, J.), dated October 31, 1995, which denied their motion pursuant to CPLR 3211 (a) (7) and 3212 to dismiss the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

This action was commenced to recover damages for breach of an insurance policy. The defendants denied the plaintiffs claim for recovery based upon his failure to provide a duly demanded proof of loss, and moved to dismiss the complaint. The Supreme Court denied the defendants’ motion. We reverse.

An insured’s failure to file sworn proofs of loss within 60 days after receiving a demand to do so by the insurance carrier, as here, is a complete defense to an action to recover damages under an insurance policy, absent a waiver of the requirement by the carrier or conduct on its part estopping assertion of the defense (see, Marino Constr. Corp. v INA Underwriters Ins. Co., 69 NY2d 798; Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 204-205; see also, Phyllis Realty Co. v Travelers Ins. Co., 227 AD2d 460).

The defendants’ remaining contentions were not raised at the Supreme Court and therefore are not properly before this Court on appeal (see, Robinson v Donald C. Swanson, Inc., 205 AD2d 678). Rosenblatt, J. P., Ritter, Copertino and Joy, JJ., concur.