Maurice v. Allstate Ins. Co.
| Decision Date | 31 May 1991 |
| Citation | 570 N.Y.S.2d 654,173 A.D.2d 793 |
| Parties | Salvatore MAURICE, et al., Respondents, v. ALLSTATE INSURANCE COMPANY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Bouck, Holloway, Kiernan and Casey, Albany (Mary Ann D. Allen, of counsel), for appellant.
Before THOMPSON, J.P., and BROWN, KUNZEMAN and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages with respect to a claim under an insurance policy, the defendant appeals from so much of an order of the Supreme Court, Dutchess County (Jiudice, J.), dated August 14, 1989, as denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the defendant's motion for summary judgment is granted, and the complaint is dismissed.
The plaintiffs insured their home through the defendant Allstate Insurance Company (hereafter Allstate). While the policy was in effect, the plaintiffs' home was burglarized, and the plaintiffs submitted a claim to Allstate. Allstate learned from the police that there were no signs of forced entry into the plaintiffs' premises. As part of its investigation of the plaintiffs' claim, Allstate requested, among other things, that the plaintiffs appear to answer questions under oath. The plaintiff Salvatore Maurice appeared for examination under oath and answered questions propounded by Allstate's counsel. The examination was not completed, however, and a continuation was scheduled. At that time, the plaintiff Salvatore Maurice appeared with an attorney who instructed him not to answer most of the questions asked by Allstate's counsel. The plaintiffs' claim was thereafter denied on the ground that the plaintiff Salvatore Maurice refused to answer questions at the examination under oath. The plaintiffs then commenced this action, seeking, among other things, to recover under the policy.
Both sides moved for summary judgment, which the Supreme Court denied, finding that there were questions of fact precluding such relief. We disagree.
The plaintiffs' argument that they never received a copy of the insurance policy containing the provision requiring them to submit to an examination under oath, does not, in this case, create a triable issue of fact. "Neither delivery nor actual possession by the insured is essential to the completion of a contract of insurance" (68 NY Jur 2d, Insurance, § 652, at 755). Moreover, the plaintiff Salvatore Maurice admitted at both examinations...
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