Cabrera v. Allstate Indemnity Co.

288 A.D.2d 415, 733 N.Y.S.2d 898, 2001 N.Y. App. Div. LEXIS 11417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 2001
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals from stated portions of an order of the Supreme Court, Queens County (Golar, J.), dated September 6, 2000, which, inter alia, granted that branch of the defendant’s motion which was for a protective order vacating his demand for discovery and inspection, and denied those branches of his cross motion which were for summary judgment on the breach of contract cause of action, and to strike the answer for failure to comply with discovery demands.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff filed a claim with the defendant insurer following the theft of his automobile. The defendant denied the claim, citing the plaintiff’s failure to submit certain documents relevant to the claim and to cooperate fully in the investigation.

The Supreme Court properly found a triable issue of fact as to whether the plaintiff failed to cooperate with the investigation and denied that branch of his cross motion which was for summary judgment on the breach of contract cause of action (see, Zuckerman v City of New York, 49 NY2d 557).

The Supreme Court also correctly granted that branch of the defendant’s motion which was for a protective order vacating the plaintiff’s demand for discovery and inspection as over-broad, since the demand called for, inter alia, information regarding the denial of claims by other insureds within the City of New York (see, Perez v Board of Educ., 271 AD2d 251).

The plaintiff’s remaining contentions are without merit. Krausman, J. P., Friedmann, Florio and Adams, JJ., concur.