Opinion
2019–07454 Index No. 704876/18
04-07-2021
In the Matter of STATE FARM FIRE AND CASUALTY COMPANY, respondent, v. Maryann LLERA–NEGRON, et al., appellants.
Davidoff and Associates, Forest Hills, N.Y. (Mark Peter Getzoni of counsel), for appellants. Bruno, Gerbino, Soriano & Aitken, LLP, Melville, N.Y. (Shaun M. Malone of counsel), for respondent.
Davidoff and Associates, Forest Hills, N.Y. (Mark Peter Getzoni of counsel), for appellants.
Bruno, Gerbino, Soriano & Aitken, LLP, Melville, N.Y. (Shaun M. Malone of counsel), for respondent.
REINALDO E. RIVERA, J.P., COLLEEN D. DUFFY, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, Maryann Llera–Negron and David A. Negron appeal from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered May 14, 2019. The order granted the petitioner's motion for leave to reargue that branch of the petition which was to permanently stay the arbitration, which had been, in effect, denied in an order of the same court (Thomas D. Raffaele, J.) dated October 25, 2018, and, upon reargument, in effect, vacated so much of the order dated October 25, 2018, as, in effect, denied that branch of the petition which was to permanently stay the arbitration and thereupon granted that branch of the petition.
ORDERED that the order entered May 14, 2019, is affirmed, with costs.
An insurer may obtain a permanent stay of arbitration where it demonstrates that the claimant violated a condition precedent to coverage (see Matter of New York Cent. Mut. Fire Ins. Co. v. Rafailov, 41 A.D.3d 603, 604, 840 N.Y.S.2d 358 ). "It is well established that the failure to comply with the standard policy provision requiring disclosure by way of submission to an examination under oath ... as a condition precedent to performance of the promise to indemnify, constitutes a material breach of the policy, precluding recovery of the policy proceeds" ( IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 A.D.3d 1005, 1007, 985 N.Y.S.2d 116 [internal quotation marks omitted]; see Nationwide Affinity Ins. Co. of Am. v. George, 183 A.D.3d 755, 756, 123 N.Y.S.3d 626 ).
Here, the petitioner submitted evidence establishing that it twice duly demanded an examination under oath from Maryann Llera–Negron and David A. Negron (hereinafter together the appellants), that the appellants twice failed to appear, and that the petitioner issued a timely denial of the claims based on the appellants’ failure to comply. Based on the foregoing, the petitioner established that the appellants violated a condition precedent to coverage (see Nationwide Affinity Ins. Co. of Am. v. George, 183 A.D.3d at 757, 123 N.Y.S.3d 626 ; IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 A.D.3d at 1007, 985 N.Y.S.2d 116 ). In opposition, the appellants "failed to submit evidence of a reasonable excuse for their noncompliance with the demands for examinations under oath, or of partial performance on their part" ( IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 A.D.3d at 1007, 985 N.Y.S.2d 116 ; see Bulzomi v. New York Cent. Mut. Fire Ins. Co., 92 A.D.2d 878, 878–879, 459 N.Y.S.2d 861 ).
The appellants’ remaining contentions either need not be reached in light of our determination or are without merit.
RIVERA, J.P., DUFFY, IANNACCI and WOOTEN, JJ., concur.