Turkow v. Sec. Mut. Ins. Co.

• Decision Date: 23 February 2012
• Citation: 92 A.D.3d 1180,2012 N.Y. Slip Op. 01402,939 N.Y.S.2d 170
• Parties: John P. TURKOW et al., Respondents, v. SECURITY MUTUAL INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01402

92 A.D.3d 1180

939 N.Y.S.2d 170

John P. TURKOW et al., Respondents,

v.SECURITY MUTUAL INSURANCE COMPANY, Appellant.

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

Feb. 23, 2012.

Williamson, Clune & Stevens, Ithaca (John H. Hanrahan III of counsel), for appellant.

Young & Young, Binghamton (Mark H. Young of counsel), for respondents.

Before: PETERS, J.P., LAHTINEN, KAVANAGH, STEIN and GARRY, JJ.

PETERS, J.P.

Appeal from an order of the Supreme Court (Lebous, J.), entered April 1, 2011 in Broome County, which, among other things, denied defendant's motion for summary judgment dismissing the complaint.

On July 25, 2001, a fire destroyed property owned by plaintiffs in the City of Binghamton, Broome County. By certified letter dated October 1, 2001 and received by plaintiff John P. Turkow on October 4, 2001, defendant demanded sworn proofs of loss from plaintiffs and provided three forms for that purpose. On December 28, 2001, defendant denied the claim on the ground that plaintiffs failed to provide a proof of loss statement within 60 days of defendant's demand and as required by the terms of the insurance policy and the Insurance Law. Plaintiffs thereafter commenced this action seeking to recover the proceeds under the policy and defendant answered, asserting as an affirmative defense, among other things, plaintiffs' failure to timely file the sworn proof of loss statements. Defendant then moved for summary judgment dismissing the complaint and plaintiffs cross-moved for partial summary judgment on the issue of liability. Supreme Court denied both motions, and this appeal by defendant followed.

“ ‘It is well settled that the failure to file sworn proofs of loss within 60 days of the demand therefor constitutes an absolute defense to an action on an insurance policy absent a waiver of the requirement by the insurer or conduct on its part estopping its assertion of the defense’ ” ( Bailey v. Charter Oak Fire Ins. Co., 273 A.D.2d 691, 692, 709 N.Y.S.2d 696 [2000], quoting Vena v. State Farm Fire & Cas. Co., 203 A.D.2d 790, 790–791, 610 N.Y.S.2d 410 [1994]; see Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 N.Y.2d 201, 209–210, 481 N.Y.S.2d 60, 470 N.E.2d 858 [1984]; Turkow v. Erie Ins. Co., 20 A.D.3d 649, 649–650, 798 N.Y.S.2d 768 [2005] ). We agree with defendant that its adjuster's investigation of the claim following the fire and subsequent preparation of a report setting forth the extent of the fire damage did not serve to satisfy plaintiffs' obligation to submit sworn proofs of loss or constitute a waiver of that condition ( 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 [1984]; Saba Rug v. Great Am. Ins. Cos., 254 A.D.2d 107, 678 N.Y.S.2d 629 [1998]; Litter v. Allstate Ins. Co., 208 A.D.2d 602, 602, 617 N.Y.S.2d 205 [1994]; Pioneer Ins. Co. v. Deleo, 167 A.D.2d 795, 797, 563 N.Y.S.2d 356 [1990] ). Nor have plaintiffs raised a factual issue as to whether defendant repudiated liability under the policy so as to excuse their obligation to timely file proof of loss statements ( see Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 N.Y.2d at 217–218, 481 N.Y.S.2d 60, 470 N.E.2d 858; compare Beckley v. Otsego County Farmers Coop. Fire Ins. Co., 3 A.D.2d 190, 194, 159 N.Y.S.2d 270 [1957], lv. dismissed 2 N.Y.2d 990, 163 N.Y.S.2d 602, 143 N.E.2d 340 [1957] ).

We do, however, agree with Supreme Court that a triable issue of fact exists as to whether the proof of loss statements were timely filed by plaintiffs. In that regard, defendant met its initial burden on its summary judgment motion by submitting copies of its October 1, 2001 letter demanding proof of loss, the certified mail receipt signed by Turkow on October 4, 2001, as well as Turkow's examination before trial testimony acknowledging that the signature on the receipt was his and that he received the proof of loss forms. Defendant also proffered the affidavit of its claims manager averring that a search of defendant's records failed to reveal that any proof of loss forms had been received from plaintiffs. In opposition to the motion, however, plaintiffs submitted the deposition testimony and sworn affidavit of Turkow, who stated that he and his brother filled out the proof of loss forms and returned them to defendant “months” before he received defendant's December 28, 2001 letter indicating...