Opinion
February 27, 1987
Appeal from the Supreme Court, Erie County, Ostrowski, J.
Present — Callahan, J.P., Doerr, Green, Pine and Davis, JJ.
Order and judgment unanimously reversed on the law with costs and motion denied. Memorandum: In this action by plaintiff to recover for a burglary loss, Special Term erred in granting defendant insurer summary judgment on the ground that plaintiff failed to maintain a detailed and itemized inventory as required under condition 8 (A) of the policy. It is well settled that only substantial compliance with such a clause is required (see, 5 Appleman, Insurance Law and Practice § 3021, at 118; 30 N.Y. Jur, Insurance, § 1041, at 417-418). Here there is an issue of fact as to whether plaintiff substantially complied with this requirement by maintaining an annual inventory and by supplementing it with invoices of subsequent purchases and sales (see, Franklin Natl. Bank v. St. Paul Fire Mar. Ins. Co., 55 A.D.2d 579, 580; see also, 5 Appleman, Insurance Law and Practice § 3025, at 156). Moreover, defendant's reliance upon an affidavit by its attorney, who lacked personal knowledge of the facts, is misplaced since such an affidavit lacks probative value (see, CPLR 3212 [b]; Champion v. Wilsey, 114 A.D.2d 630, 631; lv dismissed 66 N.Y.2d 606; Mack v. Gregory Mem. Hosp., 90 A.D.2d 969; cf., Caramanica v State Farm Fire Cas. Co., 110 A.D.2d 869). We have considered the other claims raised by the defendant and find them lacking in merit.