Kaehler v. Phoenix Insurance

Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: Defendant insured plaintiff’s business personal property and business income for damage by fire. On May 29, 1965, a 684 fire occurred and plaintiff claimed to have sustained damage payable under the policy. Section 168 of the Insurance Law and the policy provided that defendant was entitled to . an examination of plaintiff under oath concerning his loss. Defendant served such a notice for an examination to be held January 17, 1966; the examination was postponed several times for various reasons and never held. A suit on the policy was started on September 10, 1970. Section 168 of the Insurance Law and the policy provided that no suit or action in equity or law would be sustainable, unless commenced within 12 months after the loss. Defendant moved to dismiss on the ground that the suit was barred by the one year Statute of Limitations. Plaintiff opposed the motion’on the basis that an examination of him had been scheduled a number of times until one year had passed and then never rescheduled. Special Term found that a question of fact had been raised as to whether defendant waived the Statute of Limitations and ordered “ immediate trial, by the court, of said issue, pursuant to CPLR 3211 (c).” Plaintiff’s attorney filed a demand for a jury trial, and defendant’s attorney, questioning the availability of a jury trial, moved to resettle the order. The resettled order provided for a trial by jury and defendant appeals from that order. Since the resettled order materially changes the rights of the parties, an appeal lies although the time to appeal from the original order has expired. (Jonas & Naumburg Corp. v. Adu Tirdzniecibas, 220 App. Div. 653.) However, there is nothing in the record sufficient tó raise a factual issue as to waiver or estoppel, and defendant’s original motion to dismiss should have been granted. (Proc v. Home Ins. Co., 17 N Y 2d 239; Fotochrome, Inc. v. American Ins. Co., 26 A D 2d 634, affd. 23 N Y 2d 889.) (Appeal from certain parts of order of Erie Special Term in action to recover on insurance policies.) Present — Del Vecchio, J. P., Gfabrielli, Moule, Cardamone and Henry, JJ.