Summary
finding that insured failed to defeat insurer's defense by showing a justification for repeated noncompliance
Summary of this case from Vanhaaren v. State Farm Mut. Auto. Ins. Co.Opinion
July 6, 1987
Appeal from the Supreme Court, Kings County (Hurowitz, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, and the arbitration award is reinstated and confirmed.
Based upon the record before us, we cannot conclude that the arbitrator's award, as affirmed by the master arbitrator's determination, was irrational (see, Matter of Smith [Firemen's Ins. Co.], 55 N.Y.2d 224; Matter of Sansiviero v. Royal Globe Ins. Co., 109 A.D.2d 840, 842, lv denied 66 N.Y.2d 606). The record reveals that the petitioner failed to appear at three physical examinations scheduled by the appellant, a condition precedent to the collection of any benefits under the policy. While the petitioner attempted at a hearing to proffer excuses for his failure to appear on these three occasions, his testimony was rejected as incredible based upon inconsistencies between his explanations and the testimony of his wife. We see no basis upon which to disturb that finding. The arbitrator's determination was therefore rationally based upon the failure of the insured to comply with the condition precedent (see, e.g., Averbuch v. Home Ins. Co., 114 A.D.2d 827, 829; Bulzomi v. New York Cent. Mut. Fire Ins. Co., 92 A.D.2d 878). Rubin, J.P., Kooper, Spatt and Harwood, JJ., concur.