94 A.D.2d 79 | N.Y. App. Div. | 1983
OPINION OF THE COURT
Plaintiff insured appeals from an order of the Supreme Court, Special Term, granting defendant insurance company’s motion to dismiss the complaint pursuant to CPLR 3211.
The action is on a fire insurance policy. Plaintiff corporation owned some real property consisting of a one-story building alleged to be rented out as a store. On March 27, 1979 the corporation was dissolved pursuant to section 203-a of the Tax Law for nonpayment of taxes. Defendant issued its policy of fire insurance on the property effective
Defendant also sought to amend its answer to assert a defense of failure to furnish sworn proofs of loss to the insurer within 60 days of demand pursuant to subdivision 1 of section 172 of the Insurance Law (cf. Insurance Law, § 168, subd 5 [the standard fire policy, p 2, line 90 et seq.]).
As to the failure to furnish sworn proofs of loss in accordance with the demand, it is settled that “the insurer, by repudiating liability for the loss, has excused the insured from performance of its obligations” to furnish proof of loss. (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d 835, 836.) In the present
The order of the Supreme Court, New York County (Alfred S. Callahan, J.), entered September 9, 1982 dismissing the complaint, is reversed, on the law, defen
Kupferman, J. P., Ross, Carro and Asch, JJ., concur.
Order, Supreme Court, New York County, entered on or about September 9, 1982, unanimously reversed, on the law, defendant’s motion to dismiss the complaint is denied, and the defendant’s motion for leave to serve an amended answer is granted as to the defense of lack of capacity to sue and denied as to the defense of failure to render sworn proofs of loss, without costs and without disbursements.