Trexler v. American Home Assurance Co.

Kane and Levine, JJ.,

dissent and vote to affirm in the following memorandum by Kane, J. Kane, J. (dissenting). We respectfully dissent. We are unable to agree with the majority’s conclusion that “failure to furnish written proofs of loss as required by the insurance contract and demanded by defendant (Insurance Law, § 172) is an absolute defense to the action” (quoting Lentini Bros. Moving & Stor. Co. v Neu) York Prop. Ins. Underwriting Assn., 76 AD2d 759, 761). In our opinion, although the Court of Appeals affirmed Lentini (53 NY2d 835), it refused to affirm the holding which the majority adopts, that failure to file sworn proof of loss within 60 days is an absolute bar to recovery. Rather, we agree with the Second Department that the language selected by the Court of Appeals instructs us that: “summary judgment is warranted against an insured whose failure to submit formal proofs of loss is unexcused and willful, but that a delay in furnishing proof of loss does not absolutely and under all circumstances bar a recovery under a policy. Stated differently, the Court of Appeals appears to us to be saying that situations may arise where failure to timely submit such proofs will not result in an automatic dismissal of the insured’s suit on the policy” (Bonus Warehouse v Great Atlantic Ins. Co. of Del. (93 AD2d 615, 621). Indeed, the Court of Appeals stated that dismissal will not be sanctioned where “the insured’s attempt to comply has fallen short through some ‘technical and unimportant omissions or defects’ but it could be found to have substantially performed its obligation to co-operate” (Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d 835, 836, supra). As Special Term noted, the record establishes that an inventory of the property alleged to be lost was supplied to defendant insurance company shortly after the fire. In addition, both oral and written notice of loss were provided, together with a reconstruction estimate, prior to defendant’s formal demand for the filing of proof of loss. Moreover, unlike the situation in Lentini {supra), plaintiffs attended and participated in the examinations before trial. In sum, plaintiffs substantially performed their obligation to co-operate. Accordingly, we are unable to conclude that Special Term erred by excusing plaintiffs’ delay in furnishing formal proof of loss forms. The order should be affirmed.