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SUPREME COURT OF NEW YORK, SCHENECTADY COUNTY 1969.NY.43891 <>; 306 N.Y.S.2d 219; 61 Misc. 2d 574 December 11, 1969 MARY RESTINA, DOING BUSINESS AS LADY DUFF SHOP AND JULES BRIDAL, PLAINTIFF,v.AETNA CASUALTY & SURETY COMPANY, DEFENDANT Bouck & Holloway for defendant. Joseph A. Drago and Max H. Hershkowitz for plaintiff. Harold R. Soden, J. Author: Soden

Harold R. Soden, J.

Author: Soden

 Defendant moves pursuant to CPLR 3212 for summary judgment dismissing the complaint, and it sets forth numerous grounds with supporting documentary evidence thereof in support of the requested relief.

The plaintiff's complaint in the main action alleges two causes of action for recovery under a policy of insurance issued by the defendant to the plaintiff which policy provides for insurance coverage for losses sustained by fire and certain other hazards. The fire loss in question occurred on June 4, 1966 at premises apparently leased by the plaintiff and located in the County of Schenectady. As a result of the fire, plaintiff alleges substantial damages in the total amount of $65,000.

The policy in question is in the standard form required by section 168 of the New York State's Insurance Law, and it contained, among other provisions, the following conditions:

"The insured, as often as may be reasonably required, shall * * * submit to examinations under oath by any person named by this Company, and subscribe the same * * *

"No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with".

On July 7, 1966, the Grand Jury of the County of Schenectady returned a three-count indictment charging the plaintiff herein with two counts of malicious injury to property and one count of arson in the second degree. The indictment clearly indicates that these charges arose from the fire loss of June 4, 1966 which loss constitutes the basis of plaintiff's present civil action against this defendant.

On September 13, 1966, the defendant, through its attorneys, served a demand for an oral examination under oath of the plaintiff by certified mail upon the plaintiff. On September 19, 1966, plaintiff's attorney and the attorney for the defendant agreed to a seven-day extension of the date of the examination at the request of plaintiff's attorney. On the adjourned examination date, the plaintiff's attorney advised the defendant's attorney that the plaintiff would not submit to defendant's examination under oath at that time due to the then still outstanding criminal indictment. On October 6, 1966, defendant's attorneys specifically advised plaintiff and her attorney that as a result of her refusal to submit to the examination the defendant considered such act as a breach of the policy terms voiding the contract of insurance. On October 24, 1966, plaintiff's attorney advised defendant's attorney of his client's position regarding the examination:

"In response to your recent letter addressed to Mrs. Mary Restina, relative to the above captioned loss, please be advised that as I have told you over the phone and I repeat, I cannot have Mrs. Restina subject to an examination under oath at this time, since she is presently under indictment.

"As soon as this matter is disposed of, I will be glad to have Mrs. Restina submit to such examination."

Defendant's attorney's reply to plaintiff's attorney's letter, cited above, was to reiterate the defendant's position rejecting any claims of the plaintiff under the contract as a result of plaintiff's refusal to submit to the requested examination.

It then appears that the plaintiff was ultimately acquitted of all of the charges set forth in the indictment and, on March 9, 1967, her attorney advised defendant's attorney that the plaintiff was now available for the examination demanded by defendant on September 13, 1966. No examination was requested by defendant pursuant to this offer and, in June of 1967, this action against the defendant on the contract of insurance was commenced.

The above-cited facts set forth all of the necessary facts this court deems significant in order to determine the present motion. While defendant raises other independent matters in support of its motion for dismissal of the complaint, such matters need not be considered at this time in order for this court to determine the present controversy.

There is no question that the contract provisions applicable here must be construed liberally in favor of the insured (McNally v. Phoenix Ins. Co., 137 N. Y. 389). To grant the drastic relief sought by the defendant's present motion would not be justifiable for mere technical or unimportant omissions in the performance of the terms of the insurance contract (Porter v. Traders' Ins. Co., 164 N. Y. 504). To determine the present motion, the court is also required to determine that, based upon all of the papers submitted, there are no issues of fact surrounding the plaintiff's alleged breach of the contract terms as ...

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