MYP Food Corp. v. Tower Insurance

181 Order, Supreme Court, New York County (Karen S. Smith, J.), entered April 9, 2004, denying defendant’s motion for summary judgment and granting plaintiff’s cross motion to the extent of dismissing the first affirmative defense, unanimously modified, on the law, plaintiffs cross motion denied, the first affirmative defense reinstated, and otherwise affirmed, without costs. Plaintiff alleges wrongful refusal to pay an insurance claim, asserting it never received the letter demanding a sworn proof of loss. Questions of fact preclude the award of summary judgment to either party (Travis v Allstate Ins. Co., 280 AD2d 394 [2001]), including whether defendant made reasonable efforts to serve plaintiff with its demand for proof of loss, or properly relied on plaintiffs public adjuster to do so. In order to rely on a public adjuster as plaintiffs agent for service of the demand for proof of loss, defendant was required to have a good faith reason to believe the agent would advise his principal of the demand letter (Rosalie Estates v Colonia Ins. Co., 227 AD2d 335 [1996]). Moreover, factual issues remain as to both the substance and admissibility of the public adjuster’s purported acknowledgment that plaintiff had received defendant’s proof-of-loss demand. Concur—Mazzarelli, J.P., Williams, Friedman, Gonzalez and Catterson, JJ.