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Bydeskuthy v. Hanover Insurance Company

Appellate Division of the Supreme Court of New York, Second Department
Jul 1, 1996
229 A.D.2d 371 (N.Y. App. Div. 1996)

Opinion

July 1, 1996

Appeal from the Supreme Court, Dutchess County (Hillery, J.).


Ordered that the order is reversed, on the law, with costs, and the motion is granted.

This action was commenced to recover damages for breach of an insurance policy. The defendants denied the plaintiff's claim for recovery based upon his failure to provide a duly demanded proof of loss, and moved to dismiss the complaint. The Supreme Court denied the defendants' motion. We reverse.

An insured's failure to file sworn proofs of loss within 60 days after receiving a demand to do so by the insurance carrier, as here, is a complete defense to an action to recover damages under an insurance policy, absent a waiver of the requirement by the carrier or conduct on its part estopping assertion of the defense ( see, Marino Constr. Corp. v. INA Underwriters Ins. Co., 69 N.Y.2d 798; Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 N.Y.2d 201, 204-205; see also, Phyllis Realty Co. v. Travelers Ins. Co., 227 A.D.2d 460).

The defendants' remaining contentions were not raised at the Supreme Court and therefore are not properly before this Court on appeal ( see, Robinson v. Donald C. Swanson, Inc., 205 A.D.2d 678). Rosenblatt, J.P., Ritter, Copertino and Joy, JJ., concur.


Summaries of

Bydeskuthy v. Hanover Insurance Company

Appellate Division of the Supreme Court of New York, Second Department
Jul 1, 1996
229 A.D.2d 371 (N.Y. App. Div. 1996)
Case details for

Bydeskuthy v. Hanover Insurance Company

Case Details

Full title:KAROLY BYDESKUTHY, Respondent, v. HANOVER INSURANCE COMPANY et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 1, 1996

Citations

229 A.D.2d 371 (N.Y. App. Div. 1996)
644 N.Y.S.2d 783

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