Opinion
April 23, 1998
Appeal from the Supreme Court, New York County (Fern Fisher-Brandveen, J.).
Plaintiff's attorney's letter of October 1, 1993 together with his testimony at the hearing admitting receipt of proof of loss forms supports the Referee's finding that defendant's letter to plaintiff's attorney of September 23, 1993 demanding an examination under oath had enclosed the two blank proof of loss forms referred to therein. Plaintiff's failure to timely file the proofs of loss within 60 days after receiving the blank forms and defendant's demand is a complete defense to the action ( Marino Constr. Corp. v. INA Underwriters Ins. Co., 69 N.Y.2d 798), as was its refusal to submit to an examination under oath, its offer to participate in an examination before trial in this action not being a substitute therefor ( Lentini Bros. Moving Stor. Co. v. New York Prop. Ins. Underwriting Assn., 53 N.Y.2d 835, affg 76 A.D.2d 759). Delivery of the demand to plaintiff's attorney, who was also a shareholder and officer of plaintiff, constituted delivery to plaintiff ( see, Pioneer Ins. Co. v. Deleo, 167 A.D.2d 795, 797). We have considered plaintiff's remaining contentions and find them to be without merit.
Concur — Milonas, J.P., Ellerin, Tom, Mazzarelli and Saxe, JJ.