Rutherford v. Prudential Property & Casualty Insurance

170 A.D.2d 986, 566 N.Y.S.2d 144, 1991 N.Y. App. Div. LEXIS 1714

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1991
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action upon a policy of insurance to recover damages for loss by theft. Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint. The policy required plaintiffs, the insureds, to submit to defendant "within 60 days after we [defendant] request, your signed, sworn proof of loss.” The undisputed evidence on the motion for summary judgment shows that defendant, by letter mailed September 30, 1987, accompanied by a blank form of proof of loss, demanded that plaintiffs submit a sworn proof of loss. At the time of the motion for summary judgment, July 18, 1989, plaintiffs had not provided the sworn proof of loss. Plaintiffs’ failure to file sworn proof of loss within 60 days after receiving a demand to do so by their insurer, accompanied by proof of loss forms, is a complete defense to plaintiffs’ action on the insurance policy (see, Marino Constr. Corp. v INA Underwriters Ins. Co., 69 NY2d 798, 800).

Plaintiffs erroneously contend that defendant waived the provisions of the policy requiring timely submission of the proof of loss. After it made its demand for sworn proof of loss, defendant did nothing to indicate to plaintiffs that it was giving up its right to insist upon timely compliance with the demand. (Appeal from Order of Supreme Court, Niagara County, Koshian, J.—Summary Judgment.) Present—Doerr, J. P., Boomer, Green, Pine and Davis, JJ,