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Rutherford v. Prudential Prop. and Cas. Ins. Co.

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 1, 1991
170 A.D.2d 986 (N.Y. App. Div. 1991)

Opinion

February 1, 1991

Appeal from the Supreme Court, Niagara County, Koshian, J.

Present — Doerr, J.P., Boomer, Green, Pine and Davis, JJ.


Order unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action upon a policy of insurance to recover damages for loss by theft. Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. The policy required plaintiffs, the insureds, to submit to defendant "within 60 days after we [defendant] request, your signed, sworn proof of loss." The undisputed evidence on the motion for summary judgment shows that defendant, by letter mailed September 30, 1987, accompanied by a blank form of proof of loss, demanded that plaintiffs submit a sworn proof of loss. At the time of the motion for summary judgment, July 18, 1989, plaintiffs had not provided the sworn proof of loss. Plaintiffs' failure to file sworn proof of loss within 60 days after receiving a demand to do so by their insurer, accompanied by proof of loss forms, is a complete defense to plaintiffs' action on the insurance policy (see, Marino Constr. Corp. v INA Underwriters Ins. Co., 69 N.Y.2d 798, 800).

Plaintiffs erroneously contend that defendant waived the provisions of the policy requiring timely submission of the proof of loss. After it made its demand for sworn proof of loss, defendant did nothing to indicate to plaintiffs that it was giving up its right to insist upon timely compliance with the demand.


Summaries of

Rutherford v. Prudential Prop. and Cas. Ins. Co.

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 1, 1991
170 A.D.2d 986 (N.Y. App. Div. 1991)
Case details for

Rutherford v. Prudential Prop. and Cas. Ins. Co.

Case Details

Full title:ROY RUTHERFORD et al., Appellants, v. PRUDENTIAL PROPERTY AND CASUALTY…

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

Date published: Feb 1, 1991

Citations

170 A.D.2d 986 (N.Y. App. Div. 1991)