Phyllis Realty Co. v. Travelers Insurance

227 A.D.2d 460, 643 N.Y.S.2d 363, 1996 N.Y. App. Div. LEXIS 5088

Opinion

In an action, inter alia, to recover damages for breach of an insurance contract, the defendant appeals from so much of an order of the Supreme Court, Queens County (Golar, . J.), entered January 11, 1995, as denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.

It is well settled that a claimant’s failure to file sworn proof of loss within 60 days after the demand therefor constitutes an absolute defense to an action to recover damages under an insurance policy, absent a waiver of the requirement by the insurance carrier or conduct on its part estopping assertion of the defense (see, Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201; Goldman v Allstate Ins. Cos., 220 AD2d 381).

There is no dispute that the plaintiff failed to file the proof of loss within the allotted time. Contrary to the plaintiff’s contention, nothing in the record demonstrates that the defendant waived, or should be estopped from raising, the defense (see, Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., supra; Goldman v Allstate Ins. Cos., supra). Thompson, J. P., Sullivan, Joy and Florio, JJ., concur.