Opinion
July 14, 1995
Appeal from the Supreme Court, Oneida County, Murad, J.
Present — Denman, P.J., Lawton, Wesley, Balio and Boehm, JJ.
Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted summary judgment to plaintiff insurer on the ground of lack of cooperation of its insured. The record shows that representatives of plaintiff undertook efforts that were reasonably calculated to bring about the cooperation of the insured ( see, e.g., State Farm Fire Cas. Co. v. Imeri, 182 A.D.2d 683, 684). Despite those efforts, the insured willfully obstructed plaintiff's defense of the underlying litigation by refusing to turn over documents and failing to appear at an examination before trial or court-ordered pretrial/settlement conferences. Indeed, orders of preclusion were granted against the insured and he was held in contempt of court. That evidence establishes that the attitude of the insured, after his cooperation was sought, was one of "willful and avowed obstruction" ( State Farm Fire Cas. Co. v. Imeri, supra, at 683; see, 304 Meat Corp. v. New York Prop. Ins. Underwriting Assn., 188 A.D.2d 382; Pioneer Food Stores Coop. v. Federal Ins. Co., 169 A.D.2d 430, 431; Evans v International Ins. Co., 168 A.D.2d 374). Plaintiff, therefore, met its heavy burden of showing lack of cooperation of its insured ( see generally, Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 168-169). Contrary to the assertion of defendant Horizon, plaintiff is not required to show prejudice as a result of the lack of cooperation of its insured to be entitled to summary judgment ( see, Coleman v. New Amsterdam Cas. Co., 247 N.Y. 271, 276-277; Atlantic Mut. Ins. Co. v. Struve, 210 A.D.2d 112, lv denied 85 N.Y.2d 803; National Grange Mut. Liab. Co. v. Fino, 13 A.D.2d 10, 13; United States Fid. Guar. Co. v. von Bargen, 7 A.D.2d 872, 873, affd 7 N.Y.2d 932).
We have reviewed the remaining contentions of defendant and conclude that they are without merit.