Summary
denying insurer's motion for summary judgment based on noncooperation where insurer failed to show that unproduced materials were "material and relevant to the investigation or settlement of this claim"
Summary of this case from Roc Nation LLC v. HCC Int'l Ins. Co.Opinion
2004-01138.
February 28, 2005.
In an action, inter alia, to recover damages for breach of contract, the defendant Peerless Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated November 12, 2003, as denied that branch of its motion which was for summary judgment dismissing the complaint based on the plaintiffs' failure to comply with the cooperation clause of the subject policy.
Before: H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.
Ordered that the order is affirmed insofar as appealed from, with costs.
The appellant moved, inter alia, for summary judgment dismissing the complaint on the ground that the plaintiffs breached the cooperation clause of the subject insurance policy when they failed to provide documents and information regarding their financial condition at the time of the loss. The Supreme Court properly denied that branch of the appellant's motion which was based upon an alleged breach of the cooperation clause. The individual plaintiff provided two recorded interviews, appeared for two examinations under oath at which he answered all of the questions posed by the appellant's attorney, provided authorizations to release the plaintiffs' records, and provided numerous exhibits and photos. The plaintiffs' duty to cooperate with the insurer was satisfied by substantial compliance ( see Avarello v. State Farm Fire Cas. Co., 208 AD2d 483; DePicciotto Corp. v. Wallis, 177 AD2d 327; High Fashions Hair Cutters v. Commercial Union Ins. Co., 145 AD2d 465 ). Furthermore, the appellant failed to show that certain documents and information regarding the financial conditions of the plaintiffs at the time of the loss which were not produced were material and relevant to the investigation or settlement of this claim ( see McLaughlin v. State Farm Fire Cas. Co., 255 AD2d 298; cf. Maurice v. Allstate Ins. Co., 173 AD2d 793).