Opinion
October 2, 1995
Appeal from the Supreme Court, Orange County (Owen, J.).
Ordered that the order dated April 14, 1994, is affirmed insofar as appealed from; and it it further,
Ordered that the order dated November 23, 1994, is affirmed insofar as appealed from, for reasons stated by Justice Owen at the Supreme Court; and it is further,
Ordered that the defendants are awarded one bill of costs.
With respect to the order dated April 14, 1994, it is well settled that a claimant's failure to file sworn proof of loss within 60 days after the demand therefor constitutes an absolute defense to an action to recover damages under an insurance policy absent a waiver of the requirement by the insurance carrier or conduct on its part estopping its 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; Litter v. Allstate Ins. Co., 208 A.D.2d 602). Contrary to the plaintiff's contention, the court did not err in granting the motion of Allstate Insurance Companies (hereinafter Allstate) for summary judgment. The plaintiff failed to file proof of loss within the 60-day deadline and the evidence does not support the allegation that Allstate waived the proof of loss requirement or that it should be estopped from asserting the defense (see, Marino Constr. Corp. v. INA Underwriters Ins. Co., supra; Maleh v. New York Prop. Ins. Underwriting Assn., 64 N.Y.2d 613; Brostowin v. Hanover Ins. Co., 154 A.D.2d 418; Hindi v. New York Prop. Ins. Underwriting Assn., 120 A.D.2d 566). Bracken, J.P., Rosenblatt, Krausman and Goldstein, JJ., concur.