97 A.D.2d 707 | N.Y. App. Div. | 1983
Lead Opinion
Order, Supreme Court, New York County (N. C. Ryp, J.), entered March 30, 1983, granting renewal and reargument and adhering to denial of defendants’ motion for summary judgment, is reversed, on the law, with costs, and defendants’ motion for summary judgment dismissing the complaint is granted. Appeal from order, Supreme Court, New York County (N. C. Ryp, J.), entered July 2, 1982 is dismissed as superseded by order of March 30, 1983, without costs. Plaintiff does business as an individual proprietor under a trade name. The action is on floater insurance policies totaling $69,060. Plaintiff filed a proof of loss totaling $82,060 (at a time when plaintiff apparently thought the amount of the policies was $79,060). The amount of the policies had been increased by $30,485 about three and one-half weeks before the claimed loss on May 2, 1980. The circumstances of the loss as claimed by plaintiff are quite unusual: The insured property allegedly stolen consisted of
Dissenting Opinion
dissents in a memorandum as follows: I dissent and would affirm with respect to the order entered March 30, 1983. While the circumstances of this matter are strange, and the defendant is not to be faulted for making further inquiry and asking for the items which the plaintiff refused to supply, this court sets a dangerous precedent in making it obligatory for plaintiff to have supplied “(a) bank account records at three banks with which plaintiff did business for the period January 1,1979 through May, 1980; (b) all his checkbooks and all other books and records maintained by the insured company; (c) checks in payment of taxes in connection with income tax returns for 1978 and 1979, which plaintiff had previously furnished; (d) details of plaintiff’s previous arrests or convictions”. While some or all of these items may possibly be relevant, they are not such that the failure to supply them is a violation of a requirement under the policy, and it is only now, after our court has ruled, that a duty is imposed on the plaintiff, which would mean that the plaintiff should be given another chance to answer the questions.