Scheer v. Nationwide Mutual Fire Insurance

175 A.D.2d 640, 572 N.Y.S.2d 572, 1991 N.Y. App. Div. LEXIS 10178

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1991
• Status: Published

Opinion

— Order unanimously reversed on the law without costs and complaint dismissed. Memorandum: Supreme Court was without power to compel defendant to participate in the appraisal procedure contained in the fire insurance policy it issued to plaintiffs (see, Happy Hank Auction Co. v American Eagle Fire Ins. Co., 1 NY2d 534, 538; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60, 63-67; Syracuse Sav. Bank v Yorkshire Ins. Co., 301 NY 403, 410-411). Plaintiffs’ reliance on Insurance Law § 3404 (g) is misplaced. That statute became effective on March 23, 1990, after the dates of the parties’ contract and plaintiffs’ loss. Because that statute purports to create a substantive right and because its language indicates a prospective application only, Insurance Law § 3404 (g) has no application here (see, Matter of Deutsch v Catherwood, 31 NY2d 487, 489-490; see also, Matter of Thomas v Bethlehem Steel Corp., 63 NY2d 150, 154; Waddey v Waddey, 290 NY 251, 254; McKinney’s Cons Laws of NY, Book 1, Statutes § 52). (Appeal from Order of Supreme Court, Onondaga County, Hayes, J.— Declaratory Judgment.) Present — Dillon, P. J., Callahan, Den-man, Green and Lowery, JJ.