Opinion
April 11, 1994
Appeal from the Supreme Court, Suffolk County (Werner, J.).
Ordered that the order is affirmed, with costs.
We find that the plaintiff, as executor, as a condition of receiving compensation for the estate's loss, was required to appear for an examination under oath. The plaintiff's outright refusal to do so is a material breach of his obligation under the terms of his contract of insurance (see, Lentini Bros. Moving Stor. Co. v New York Prop. Ins. Underwriting Assn., 76 A.D.2d 759, affd 53 N.Y.2d 835). Further, since the plaintiff failed to show any evidence of an intent to submit to an examination under oath, the Supreme Court did not err in failing to make the dismissal conditional upon his failing to appear for an examination under oath (see, Pizzirusso v Allstate Ins. Co., 143 A.D.2d 340).
The plaintiff's remaining contentions are either without merit or unpreserved for appellate review. Mangano, P.J., Miller, Hart and Florio, JJ., concur.