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.