Scifo v. New York Property Insurance

Judgment, Supreme Court, New York County (Shirley Fingerhood, J.), entered July 5, 1989, which dismissed the complaint, unanimously affirmed, without costs. The appeal from the order of the same court and Justice, entered on or about June 28, 1989, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously dismissed as superseded by the appeal from the final judgment, without costs. Plaintiff, the administrator of the estate of defendant’s insured, made a $62,500 claim for loss said to have been caused by vandalism. In the summer of 1987, plaintiff executed a non-waiver agreement and submitted certain third party documentation requested by defendant’s adjuster. After plaintiff rejected a $9,500 offer of settlement and threatened 257 to file a complaint with the State Department of Insurance, defendant referred the matter to counsel, who in May 1988, demanded sworn proofs of loss and an examination under oath on a date certain. Plaintiffs only response to such demands was an unsworn letter reciting that he had previously provided information as to the loss and suggesting that he be deposed in connection with the State Department of Insurance investigation. The complaint was properly dismissed for failure to file sworn proofs of loss in a timely fashion (Maleh v New York Prop. Ins. Underwriting Assn., 64 NY2d 613). Plaintiffs claims that defendant repudiated the contract of insurance prior to its demands for sworn proofs of loss, and that defendant waived or is estopped from asserting these policy terms, are devoid of evidentiary support, and indeed, contradicted by the available evidence (see, C.F.C. Realty Corp. v Empire Fire & Mar. Ins. Co., 110 AD2d 508). Concur—Kupferman, J. P., Milonas, Rosenberger, Asch and Kassal, JJ.