Carden v. Allstate Ins. Co.

• Decision Date: 29 November 1984
• Citation: 105 A.D.2d 1048,483 N.Y.S.2d 486
• Parties: Robert E. CARDEN et al., Respondents, v. ALLSTATE INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 486

483 N.Y.S.2d 486

105 A.D.2d 1048

Robert E. CARDEN et al., Respondents, v.ALLSTATE INSURANCE COMPANY, Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 29, 1984.

Ainsworth, Sullivan, Tracy & Knauf, Albany (Nancy L. Burritt, Albany, of counsel), for appellant.

King, Murphy, Adang & Arpey, Saratoga Springs (Peter G. Sipperly, Saratoga Springs, of counsel), for respondents.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered May 1, 1984 in Washington County, which denied defendant's motion for a protective order.

On October 6, 1982, fire destroyed plaintiffs' residence which was covered against fire loss under a homeowner's policy issued by defendant.The next day, defendant's senior claims representative conducted an investigation at the scene.In an affidavit attached to defendant's moving papers, the claims representative avers that he found a fire pattern which did not conform to any natural source; that he discussed the fire with the Washington County arson investigator; and that he took a statement from plaintiffShirley H. Carden concerning the fire, which disclosed that plaintiffs had been unable to sell their home and had been beset by financial difficulties before the fire.Suspecting arson, the claims representative engaged an independent arson investigator on October 8, 1982 to further document the circumstances of the fire; approximately two weeks later, defendant retained counsel in this matter.Proofs of loss were furnished to defendant as required and plaintiffs were examined pursuant to the terms of the policy.Following receipt of defendant's letter of March 7, 1983, disclaiming liability, plaintiffs commenced this action predicated on defendant's alleged breach of the insurance contract.

Plain...