Rodriguez v. Allstate Insurance

236 A.D.2d 285, 654 N.Y.S.2d 305, 1997 N.Y. App. Div. LEXIS 1397

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1997
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Anne Targum, J.), entered December 19, 1995, which, in an action to recover under a fire insurance policy, denied plaintiff insureds’ motion to reject the report of the Judicial Hearing Officer (JHO), and granted defendant insurer’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The record supports the JHO’s finding, entirely one of credibility, that defendant’s attorney did not represent to plaintiffs at their examination under oath that their attendance at the examination relieved them of any obligation to file sworn proofs of loss, and accordingly, plaintiffs’ motion to reject the report was properly denied (Namer v 152-54-56 W. 15th St. Realty Corp., 108 AD2d 705). There being no basis for estopping defendants from asserting plaintiffs’ failure to file sworn proof of loss within 60 days after receiving defendant’s demand to do so, the action was properly dismissed (Marino Constr. Corp. v INA Underwriters Ins. Co., 69 NY2d 798). Concur— Milonas, J. P., Rosenberger, Wallach and Nardelli, JJ.