New Dance Group Studio, Inc. v. Seltzer

293 A.D.2d 298, 739 N.Y.S.2d 569, 2002 N.Y. App. Div. LEXIS 3569

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 2002
• Status: Published

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about March 29, 2001, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff alleges that defendant insurance adjusters, retained by plaintiff to oversee plaintiffs insurance claim for fire losses at its commercial premises, failed to advise it that once it had submitted its sworn proof of loss statement, a supplemental proof of loss statement would not be considered by its insurer unless the supplemental statement related to losses hidden at the time of the original statement’s submission. However, the affirmation of plaintiffs director in the federal court action brought by plaintiff against its insurer, when read together with the director’s deposition testimony in this matter, sufficiently establishes that plaintiff knew when it submitted its original proof of loss statement that proof of hidden damages would be necessary to submit a supplemental claim. The director’s subsequent self-serving affidavit, submitted in opposition to the instant motion, was insufficient to create an issue of fact in this regard (see, Perez v Bronx Park S. Assoc., 285 AD2d 402; Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320).

We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Williams, P.J., Saxe, Buckley, Ellerin and Rubin, JJ.