Dlugosz v. Exchange Mut. Ins. Co.
| Decision Date | 17 October 1991 |
| Citation | 574 N.Y.S.2d 864,176 A.D.2d 1011 |
| Parties | Bonnie DLUGOSZ, Appellant, v. EXCHANGE MUTUAL INSURANCE COMPANY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Insogna & McCoski (Richard A. Insogna, of counsel), Amsterdam, for appellant.
Bouck, Holloway, Kiernan & Casey (John R. Casey, of counsel), Albany, for respondent.
Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and CREW, JJ.
Appeals (1) from an order of the Supreme Court (Ryan Jr., J.) in favor of defendant entered March 22, 1990 in Schenectady County, upon a dismissal of the complaint at the close of the evidence, and (2) from the judgment entered thereon.
The issue before us is whether Supreme Court, upon defendant's motion at the close of the evidence, properly dismissed plaintiff's complaint which had sought to recover jewelry losses under a jewelry rider in a homeowner's insurance policy issued to her by defendant. Plaintiff alleged loss by theft when a forcible entry occurred at her home on November 27, 1981 and three rings, valued at approximately $41,250, were stolen together with various other items of personal property, including $7,000 in cash. Following the loss, defendant conducted examinations under oath of plaintiff and her husband pursuant to provisions of the policy and demanded the filing of a proof of loss statement. Plaintiff and her husband refused to answer any questions regarding prior theft losses as well as any questions concerning plaintiff's income, debts and judgments at the time of the loss. Plaintiff and her husband also refused to produce copies of plaintiff's income tax returns. The loss claim was rejected by defendant.
Plaintiff then commenced this suit to recover for the jewelry losses. Defendant interposed an answer raising affirmative defenses that plaintiff had committed fraud and false swearing in connection with the claim in violation of the policy provisions; failed to subscribe the transcript of the examination under oath; that the loss was caused by plaintiff under the general theft exclusion contained in the policy; and that plaintiff failed to answer material and relevant questions at the examination under oath relating to her income, assets, prior loss history and financial condition.
At trial, after plaintiff rested, defendant offered into evidence the transcript of the examination under oath of plaintiff and her husband. Defendant's subsequent motion to dismiss the complaint, based upon breaches and violations of the cooperation clause under the insurance contract, namely, failure to answer questions as to plaintiff's income, submit copies of plaintiff's income tax returns, and to answer questions relevant to plaintiff's and her husband's income, assets, prior loss history and financial condition, was granted. This appeal by plaintiff ensued.
Plaintiff contends that the examination under oath of plaintiff and her husband were erroneously received in evidence. We disagree. Plaintiff's and her husband's transcripts were admissible both as statements of a party to the lawsuit and as extrajudicial admissions of a party (see, Richardson, Evidence §§ 209, 210, at 187 [Prince 10th ed.]. The husband was an extra insured under the policy. Plaintiff's and her husband's examinations contained inconsistent statements and were, therefore, admissible as evidence (see, Hayes v. Henault, 131 A.D.2d 930, 932-933, 516 N.Y.S.2d 798).
Plaintiff's objections to the admission of the examinations before trial with counsel's notations thereon is also without merit. We note that notations of counsel on the examinations were redacted before they were admitted. Pl...
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