Opinion
2002-10066
Argued February 11, 2003.
April 21, 2003.
In an action, inter alia, to recover unpaid no-fault benefits, the defendant appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Queens County (Schmidt, J.), dated September 15, 2002, which, among other things, denied its motion for summary judgment dismissing the complaint.
Marjorie E. Bornes, New York, N.Y., for appellant.
Michael A. Cervini, P.C., Jackson Heights, N.Y. (Robin Mary Heaney of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
"An insurance carrier may not, after repudiating liability, create grounds for its refusal to pay by demanding compliance with proof of loss provisions of the policy" (State Farm Ins. Co. v. Domotor, 266 A.D.2d 219; see Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 N.Y.2d 201; Lentini Bros. Moving Stor. Co. v. New York Prop. Ins. Underwriting Assn., 53 N.Y.2d 835; Sherri v. Natl' Sur. Co., 243 N.Y. 266; see also King v. State Farm Mut. Auto Ins. Co., 218 A.D.2d 863, 865; Beckley v. Otsego County Farmers Coop. Fire Ins. Co., 3 A.D.2d 190).
In the present case, there are issues of fact as to whether the defendant insurance company repudiated liability under its policy, within the meaning of the rule stated above, by issuing a series of claim denial forms prior to any alleged failure by the plaintiff to submit to an examination under oath. Under these circumstances, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint in its entirety, based on the plaintiff's failure to submit to an examination under oath as requested on June 12, 1998 (see e.g. Ayyub v. Smith, 291 A.D.2d 864; Rajchandra Corp. v. Title Guar. Co., 163 A.D.2d 765; Treptow v. Exchange Mut. Ins. Co., 106 A.D.2d 767; Ocean-Clear v. Continental Cas. Co., 94 A.D.2d 717).
The defendant's remaining contentions are without merit.
PRUDENTI, P.J., KRAUSMAN, GOLDSTEIN and SCHMIDT, JJ., concur.