Santilli v. Allstate Ins. Co.

Decision Date10 June 2005
Docket NumberCA 05-00163.
Citation19 A.D.3d 1031,797 N.Y.S.2d 226,2005 NY Slip Op 04744
CourtNew York Supreme Court — Appellate Division
PartiesDOMINIC J. SANTILLI, Appellant, et al., Plaintiff, v. ALLSTATE INSURANCE COMPANY, Respondent.

Appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.), entered November 9, 2004. The order denied that part of the motion of plaintiff Dominic J. Santilli seeking to dismiss the second, sixth, seventh and eighth affirmative defenses.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

In an action to recover indemnification for a fire loss under a homeowner's insurance policy, Dominic J. Santilli (plaintiff) appeals from an order that denied that part of his motion seeking to dismiss the second, sixth, seventh and eighth affirmative defenses raised in the answer of defendant, Allstate Insurance Company (Allstate). Plaintiff moved to dismiss the affirmative defenses pursuant to CPLR 3211 (b) and therefore bore the burden of establishing that the affirmative defenses were without merit as a matter of law (see Pellegrino v Millard Fillmore Hosp., 140 AD2d 954, 955 [1988]). Plaintiff failed to meet his burden, and thus that part of the motion was properly denied (see Connelly v Warner, 248 AD2d 941, 943 [1998]; Triple Crown Auto v Utica Mut. Ins. Co., 233 AD2d 436 [1996]).

We reject the contention of plaintiff that the affirmative defenses were barred by Insurance Law § 3404. Section 3404 (e) sets forth the form of the standard fire insurance policy of the State of New York, which contains a provision requiring "[t]he insured" to submit to examinations under oath, and plaintiff contends that his roommate is not an "insured" under the policy. In the affirmative defenses, Allstate alleges that plaintiff's roommate is an "additional insured" under the policy and that plaintiff, either personally or through the actions of his representatives, impeded Allstate's investigation of the claim. Consistent with the statute, a fire insurance policy may require that an insured cooperate with the insurer in the investigation of a fire (see Dyno-Bite, Inc. v Travelers Cos., 80 AD2d 471, 473 [1981], appeal dismissed 54 NY2d 1027 [1981]; see also Somerstein Caterers of Lawrence v Insurance Co. of State of Pa., 262 AD2d 252 [1999]; Scher v Republic Ins. Co., 226 AD2d 521 [1996]). Defendant may therefore...

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8 cases
  • 544 W. 157th St. Hous. Dev. Fund Corp. v. Alliance Prop. Mgmt. & Dev., Inc., Index No. 104203/2012
    • United States
    • New York Supreme Court
    • 22 Noviembre 2013
    ...aff'd, 13 N.Y.3d 774, 775-76 (2009); Vita v. New York Waste Servs., LLC, 34 A.D.3d 559 (2d Dep't 2006); Santilli v. Allstate Ins. Co., 19 A.D.3d 1031, 1032 (4th Dep't 2005). To defeat plaintiff's motion to dismiss affirmative defenses, defendant only need allege the factual elements of its ......
  • 958 Sixth Ave. Bake, LLC v. SCG Realty II, LLC
    • United States
    • New York Supreme Court
    • 1 Marzo 2012
    ...90 A.D.3d 541, 542 (1st Dep't 2011); Vita v. New York Waste Servs., LLC, 34 A.D.3d 559 (1st Dep't 2006); Santilli v. Allstate Ins. Co., 19 A.D.3d 1031, 1032 (1st Dep't 2005).III. PLAINTIFFS' PRIMA FACIE CLAIM FOR BREACH OF THE PROMISSORY NOTE Plaintiffs establish a prima facie claim by Xeno......
  • In re Maloy
    • United States
    • New York Surrogate Court
    • 6 Abril 2022
    ...affirmative defense bears the burden of demonstrating that the defense is without merit as a matter of law (Santilli v Allstate Ins. Co., 19 A.D.3d 1031 [4th Dept 2005]). In deciding a motion to dismiss a defense, the respondent "is entitled to the benefit of every reasonable intendment of ......
  • Trafalgar Co. v. Malone
    • United States
    • New York Civil Court
    • 2 Marzo 2021
    ...its burden of establishing that all seven of the affirmative defenses are without merit as a matter of law. Santilli v Allstate Ins. Co., 19 A.D.3d 1031 (AD 4th Dept, 2005). A summary judgment motion "…must be supported by an affidavit, a copy of the pleadings and by other available proof…T......
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