Summary
reversing denial of summary judgment motion without prejudice to renewal in the event that the plaintiff failed to submit to an EUO within thirty days; "plaintiff's breach of the policy was not cured by his belated expression of a willingness to cooperate which was made more than two years after the loss and only in response to the insurer's motion for summary judgment . . . [u]nder these circumstances, we find that the complaint should be dismissed"
Summary of this case from Eagley v. State Farm Ins. Co.Opinion
October 25, 1993
Appeal from the Supreme Court, Suffolk County (Copertino, J.).
Ordered that the order is reversed, on the law, with one bill of costs, the motions are granted, and the complaint is dismissed.
It is well settled that an insured's failure to comply with the provision of an insurance policy requiring him to submit to an examination under oath and to supply other relevant information constitutes a material breach of the policy and precludes recovery thereunder (see, Argento v. Aetna Cas. Sur. Co., 184 A.D.2d 487; Maurice v. Allstate Ins. Co., 173 A.D.2d 793). The record demonstrates that the instant plaintiff engaged in a pattern of willful noncooperation in the investigation of his burglary claim, as evidenced by his refusal to answer numerous relevant questions during his examination under oath, his improper and premature termination of the examination despite repeated warnings, and his rejection of all subsequent attempts by the insurer to conduct a further examination and to obtain relevant documents (see, e.g., Argento v. Aetna Cas. Sur. Co., supra; Pizzirusso v. Allstate Ins. Co., 143 A.D.2d 340; Averbuch v Home Ins. Co., 114 A.D.2d 827). Furthermore, the plaintiff's breach of the policy was not cured by his belated expression of a willingness to cooperate which was made more than two years after the loss and only in response to the insurer's motion for summary judgment (see, e.g., Argento v. Aetna Cas. Sur. Co., supra; Evans v. International Ins. Co., 168 A.D.2d 374; Azeem v. Colonial Assur. Co., 96 A.D.2d 123, affd 62 N.Y.2d 951). Under these circumstances, we find that the complaint should be dismissed.
We have considered the plaintiff's remaining contentions and find them to be without merit. Bracken, J.P., Sullivan, Eiber and O'Brien, JJ., concur.