Rosetti v. United States Fidelity & Guaranty Co.

219 A.D.2d 819, 632 N.Y.S.2d 355, 1995 N.Y. App. Div. LEXIS 10848

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 1995
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted summary judgment to defendant United States Fidelity & Guaranty Company, Inc. (USF&G). USF&G met its burden of establishing plaintiffs lack of cooperation (see, 304 Meat Corp. v New York Prop. Ins. Underwriting Assn., 188 AD2d 382). Plaintiff persistently failed to comply with the provision of the insurance policy issued to him by USF&G that required him to submit to an examination under oath and provide certain relevant documents and records. That persistent failure to comply constitutes a material breach of the policy and precludes recovery under it (see, Johnson v Allstate Ins. Co., 197 AD2d 672, lv denied 82 NY2d 664; Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 487-488; Azeem v Colonial Assur. Co., 96 AD2d 123, affd 62 NY2d 951). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Summary Judgment.) Present — Pine, J. P., Lawton, Callahan, Balio and Davis, JJ.