Marmorato v. Allstate Insurance , 640 N.Y.S.2d 97 ( 1996 )

Order, Supreme Court, Kings County (Melvin Barasch, J.), entered on or about February 27, 1995, which, in an action to recover under the theft provision of an automobile insurance policy, insofar as appealed from, denied defendant’s motion for summary judgment on condition that plaintiff appear at a second examination under oath and answer all the questions he refused to answer at the first examination under oath, unanimously affirmed, without costs.

While it is clear that plaintiff’s refusal, upon advice of counsel, to answer certain of the questions put to him at the examination under oath was a breach of his contractual obligation to cooperate with defendant’s investigation (see, Evans v International Ins. Co., 168 AD2d 374), and that circumstances of the claim appear suspicious, we agree with the IAS Court that the noncompliance was not so willful or extreme as to warrant dismissal of the action without giving plaintiff one last chance to answer the questions (see, Yerushalmi v Hartford Acc. & Indem. Co., 158 AD2d 407). Concur—Sullivan, J. P., Rosenberger, Wallach, Kupferman and Williams, JJ.