Kinsman v. Royal Indemnity Co.

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment. Defendant established its initial entitlement to judgment as a matter of law by submitting proof in admissible form that plaintiff failed to comply with a condition precedent under the underinsured motorist’s coverage of the insurance policy (see, Sulner v G.A. Ins. Co., 224 AD2d 205, 205-206, lv denied 88 NY2d 805; see also, Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 688, 690-691). Plaintiff, however, raised an issue of fact whether defendant waived the condition precedent (cf., Sulner v G.A. Ins. Co., supra, at 206). (Appeal from Order of Supreme Court, Erie County, Michalek, J. — Summary Judgment.) Present — Denman, P. J., Pine, Hayes, Pigott, Jr., and Balio, JJ.