Silver v. General Accident Insurance

203 A.D.2d 354, 609 N.Y.S.2d 674

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 1994
• Status: Published

Opinion

—In an action to recover insurance proceeds under a casualty insurance policy issued by the defendant, the plaintiff appeals from an order of Supreme Court, Suffolk County (Werner, J.), dated April 9, 1992, which granted the defendant’s motion for summary judgment dismissing the plaintiff’s complaint in its entirety.

Ordered that the order is affirmed, with costs.

We find that the plaintiff, as executor, as a condition of receiving compensation for the estate’s loss, was required to appear for an examination under oath. The plaintiff’s outright refusal to do so is a material breach of his obligation under the terms of his contract of insurance (see, Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 76 AD2d 759, affd 53 NY2d 835). Further, since the plaintiff failed to show any evidence of an intent to submit to an examination under oath, the Supreme Court did not err in failing to make the dismissal conditional upon his failing to appear for an examination under oath (see, Pizzirusso v Allstate Ins. Co., 143 AD2d 340).

The plaintiff’s remaining contentions are either without merit or unpreserved for appellate review. Mangano, P. J., Miller, Hart and Florio, JJ., concur.