Lentini Bros. Moving & Storage Co. v. New York Property Insurance Underwriting Ass'n , 428 N.Y.S.2d 684 ( 1980 )

Kupferman, J., dissents in a memorandum as follows:

I dissent and would modify to grant summary judgment to the defendants dismissing the action, unless the plaintiff within 30 days complies with the provisions of the insurance policy. It is alleged that there was a substantial insurance loss covered by the policy in this action, in connection with fire damage occurring in Brooklyn at the end of 1976. The language of the policy required sworn proof of loss within 60 days. (See, also, Insurance Law, § 168.) Because of the substantial nature of the claim and the fact that there was also excess coverage, the defendants immediately retained counsel, and for some 10 or 11 months plaintiff supplied various items of proof with respect to the claim. Plaintiff then commenced an action by service of a summons only. Counsel for the New York Property Insurance Underwriting Association requested that the plaintiff file sworn proof of loss and appear for an examination under oath. There was no compliance with this request. (See Insurance Law, § 172.) However, the matter proceeded, and the plaintiff answered interrogatories and was deposed, and there was also discovery. However, this was all done in the litigation and not in compliance with the provisions of the policy. A note of issue and a statement of readiness was filed, and the action was pretried and remanded for calendar assignment. At that stage, the defendants moved to dismiss the complaint on the ground of the failure to appear for examination under oath pursuant to the terms of the policy, and the motion was granted. It would seem that by proceeding with the litigation the defendants waived the requirement of compliance. Counsel would, of course, be authorized so to proceed. (Cf. Mighty Midgets v Centennial Ins. Co., 47 NY2d 12.) In the alternative, it could be contended that the equivalent was attained by virtue of the deposition and related discovery proceedings, which, under the circumstances, make the requirement of compliance with the terms of the policy one more of form than of substance. Inasmuch as it is, therefore, mere technical compliance that is involved, we can direct that compliance take place within the next 30 days. (See Pogo Holding Corp. v New York Prop. Ins. Underwriting Assn., 73 AD2d 605.)