97 A.D.2d 722 | N.Y. App. Div. | 1983
Lead Opinion
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
Concurrence Opinion
concurs in a memorandum as follows: The court’s memorandum accurately applies what appear to be the controlling rules of law to the facts presented, and I accordingly join the court in reversing the denial of the motion for summary judgment and in dismissing the complaint. I do so with a sense of disquiet as to the justice of the result reached in this case, and with a strong belief that the rules that have evolved in this area, although quite well founded on traditional principles of contract law and subdivision 1 of section 172 of the Insurance Law, are likely on a repetitive basis to yield unjust results. We are here dismissing what may well be a meritorious claim for recovery under a policy of insurance because the plaintiff failed to execute and forward proof of loss forms in response to a request to do so set forth in one paragraph of a letter primarily addressed to the insured’s appearance for an examination under oath, which request did not inform plaintiff of the legal consequences of a failure to comply and did not set forth a date within which compliance was required, and which request was never thereafter repeated. It seems to me highly probable that the plaintiff would have complied with the request if he were aware of the legal consequences that would attach to his failure to do so. It also seems to me obvious that the request was phrased in terms that were not calculated to alert the plaintiff to the significance of a failure to comply. It is, of course, true that in the policy of insurance, a typically formidable, densely written document, that seems to have been designed to induce sleep on the part of all but the most assiduous and patient
