Darvick v. General Accident Insurance

303 A.D.2d 540, 756 N.Y.S.2d 457

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 2003
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of an insurance contract, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O’Connell, J.), entered January 10, 2002, which granted the motion of the defendants General Accident Insurance Company, P.G. Insurance Company of New York, and CGU Insurance Company for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

The Supreme Court correctly granted the respondents’ motion for summary judgment. In opposition to the respondents’ prima facie showing of their entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Although the plaintiffs timely furnished a response to the respondents’ demand letter dated September 28, 1998 (see General Construction Law § 20; Ball v Allstate Ins. Co., 81 NY2d 22, 24, 26 [1993]), their failure to swear to the veracity of their list of damaged items is a cpmplete defense to the plaintiffs’ action on the insurance policy (see Insurance Law § 3407 [a]; Marino Constr. Corp. v INA Underwriters Ins. Co., 69 NY2d 798, 800 [1987]; Maleh v New York Prop. Ins. Underwriting Assn., 64 NY2d 613, 614 [1984]; Litter v Allstate Ins. Co., 208 AD2d 602 [1994]; Melamudov v Colonia Ins. Co., 202 AD2d 557, 558 [1994]).

The plaintiffs’ remaining contentions are without merit. Goldstein, J.P., Adams, Townes and Crane, JJ., concur.