Going 2 Extremes, Inc. v. Hartford Fin. Servs. Grp., Inc.

• Decision Date: 14 November 2012
• Citation: 953 N.Y.S.2d 865,2012 N.Y. Slip Op. 07627,100 A.D.3d 694
• Parties: GOING 2 EXTREMES, INC., et al., appellants, v. HARTFORD FINANCIAL SERVICES GROUP, INC., defendant, Trumbull Insurance Company, respondent.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 694

953 N.Y.S.2d 865

2012 N.Y. Slip Op. 07627

GOING 2 EXTREMES, INC., et al., appellants,

v. HARTFORD FINANCIAL SERVICES GROUP, INC., defendant,Trumbull Insurance Company, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 14, 2012.

Tully Rinckey, PLLC, Albany, N.Y. (Douglas J. Rose of counsel), for appellants.

Goldberg Segalla LLP, Buffalo, N.Y. (Carrie Appler and Daniel W. Gerber of counsel), for respondent.

In an action to recover damages for breach of an insurance contract, the plaintiffs appeal from an order of the Supreme Court, Orange County (McGuirk, J.), dated March 21, 2011, which granted the motion of the defendant Trumbull Insurance Company for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the motion of the defendant Trumbull Insurance Company (hereinafter Trumbull) for summary judgment dismissing the complaint insofar as asserted against it. Trumbull established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs failed to submit a sworn proof-of-loss statement within 60 days after receiving a demand to do so, accompanied by a blank proof-of-loss form ( seeInsurance Law § 3407[a]; Anthony Marino Constr. Corp. v. INA Underwriters Ins. Co., 69 N.Y.2d 798, 800, 513 N.Y.S.2d 379, 505 N.E.2d 944;Meserole Factory, LLC v. Arch Ins. Group, 88 A.D.3d 967, 967, 931 N.Y.S.2d 533;DeRenzis v. Allstate Ins. Co., 256 A.D.2d 303, 304, 681 N.Y.S.2d 311).

Contrary to the plaintiffs' contention, they failed to raise a triable issue of fact as to whether they substantially complied with Trumbull's demand for a sworn proof-of-loss statement ( see Maleh v. New York Prop. Ins. Underwriting Assn., 64 N.Y.2d 613, 614, 485 N.Y.S.2d 32, 474 N.E.2d 240;Darvick v. General Acc. Ins. Co., 303 A.D.2d 540, 756 N.Y.S.2d 457;Agora Intl. v. Royal Ins. Co., 234 A.D.2d 489, 651 N.Y.S.2d 905), or whether Trumbull waived the requirement to provide such a statement by repudiating liability ( see generally Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 N.Y.2d 201, 217–218, 481 N.Y.S.2d 60, 470 N.E.2d 858;cf. Matter of State Farm Ins. Co. v. Domotor, 266 A.D.2d 219, 697 N.Y.S.2d 348;Beckley v. Ostego County Farmers Coop. Fire Ins. Co., 3 A.D.2d 190, 159 N.Y.S.2d 270).

Accordingly, the Supreme Court properly granted Trumbull's motion for summary...