Syd's Decorators, Inc. v. New York Property Insurance Underwriting Ass'n

Order, Supreme Court, Bronx County (Silbowitz, J.), entered December 17, 1982, denying defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs or disbursements, and the motion granted. Plaintiff sues its insurer to recover for a contents’ loss allegedly sustained as a result of a fire which occurred at its Bronx retail dry goods store on October 22, 1980. Defendant’s policy contained the statutory language of subdivision 5 of section 168 of the Insurance Law which provides that in case of loss the insured shall, inter alia, “within sixty days after the loss * * * render to [the] Company a proof of loss, signed and sworn to”. In accordance with the statutory form the policy further provided that “[n]o suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with”. Over nine months later, on August 6, 1981, defendant sent a letter, the August 10, 1981 receipt of which is conceded, with a copy to plaintiff’s previously retained public adjuster, requesting the filing of a sworn proof of loss and enclosing blank forms for that purpose. This letter served to trigger the running of the 60 days for such filing in accordance with the ameliorative provisions of subdivision 1 of section 172 of the Insurance Law, which excuses the failure to file “unless [the] insurer * * * shall, after [the] loss or damage, give to [the insured] a written notice that it * * * desire[s] proof of loss to be furnished * * * and also a suitable blank form or forms for such proofs of loss.” Defendant also requested that plaintiff appear for oral examination on September 10, 1981. Thereafter, on October 6, 1981, plaintiff, by its president represented by counsel, was orally examined under oath. The examination was adjourned without being completed to permit plaintiff to furnish certain requested documentation. As of the time of the commencement of this action, plaintiff had failed to execute the transcript of its examination or to produce the books and records it stipulated to provide. In September of 1982, as the expiration of the two-year statutory (Insurance Law, § 168, subd 5) and policy period in which to institute suit on the policy approached, plaintiff commenced this action, without ever having filed a proof of loss. Defendant asserted seven affirmative defenses, including the failure to provide, as required, a proof of loss within 60 days after demand. Defendant thereafter moved for summary judgment dismissing the complaint on the basis of this defense. In opposition, plaintiff asserted that since the proof of loss request had never been renewed, even at the October 6, 1981 examination, it was under the misapprehension that its attendance thereat was in full compliance with the August 6, 1981 demand. Finding partial compliance with the proof of loss demand by virtue of plaintiff’s submission to an oral examination which produced 58 pages of testimony, Special Term denied the motion and directed plaintiff to serve a proof of loss within 30 days. The motion should have been granted and the 723 complaint dismissed. Notwithstanding plaintiff’s suggestion to the contrary, defendant never misled it as to the proof of loss requirement. E*afendant’s letter of August 6, 1981 contains two separate demands, each of which is contractually and statutorily sanctioned. After requesting that plaintiff file a proof of loss, defendant’s letter recites, “Pursuant to the terms of the policy, you are also requested to appear * * * for an examination”. Both the policy and statute speak in the conjunctive with respect to the proof of loss and examination requirements, making it clear that the requirements are separate and distinct. Furthermore, plaintiff was told that the examination was without prejudice to any rights which might have accrued to either of the parties. Moreover, at the time of its examination on October 6,1981, plaintiff still had time within which to file proofs of loss and comply with the 60-day requirement. In enacting section 168 of the Insurance Law, subdivision 5 of which mandates a fire insurer to include in its policy a provision requiring the filing of a proof of loss “within sixty days after the loss” and the condition that “[n]o suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with”, the Legislature has granted an insurer the right to rely upon an insured’s failure to render a proof of loss as a material breach of both contract and statute unless the proof is filed within 60 days of written request. This court has previously recognized that submission to an examination can neither substitute for nor excuse compliance with the contractual requirement that a sworn proof of loss be filed within 60 days after written demand therefor. (See Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 76 AD2d 759, affd 53 NY2d 835; see, also, Trexler v American Home Assur. Co., 96 AD2d 686.) Here, plaintiff made no effort whatsoever to comply with the written demand for the filing of a proof of loss. Thus, “[t]his is not a case in which the insured’s attempt to comply has fallen short through some ‘technical and unimportant omissions or defects’ but it could be found to have substantially performed its obligation to co-operate”. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d, at p 836, citing Porter v Traders’ Ins. Co., 164 NY 504, 509.) The complaint is dismissed. Concur — Kupferman, J. P., Sullivan, Bloom and Alexander, JJ.