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HAVEMEYER TEXTILE v. FEDERAL INS. ADMR.

January 25, 1983

HAVEMEYER TEXTILE, Plaintiff,
v.
FEDERAL INSURANCE ADMINISTRATOR and FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendants


Sifton, District Judge.


The opinion of the court was delivered by: SIFTON

MEMORANDUM AND ORDER

SIFTON, District Judge.

 Plaintiff, Havemeyer Textile, commenced this action alleging the defendants issued a federal crime insurance policy insuring plaintiff against burglary, that plaintiff sustained burglary losses at its business premises in Brooklyn on September 8 and October 5, 1981, that plaintiff has complied with the policy claim requirements, and that defendants have refused to adjust plaintiff's losses and have breached the insurance contract. Defendants move for an order pursuant to Rule 56 of the Federal Rules of Civil Procedure granting them summary judgment.

 The standard under which a summary judgment motion is tested requires a showing "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Federal Rules of Civil Procedure 56(c). The burden rests on the moving party to demonstrate the lack of a genuine fact issue. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). In its search of the record, the Court should resolve all ambiguities and inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980). "The possibility that a factual issue may exist will not defeat the motion[;] rather the party opposing summary judgment must indicate that a genuine dispute as to a material fact does exist. Uncertainty as to the true state of any material fact defeats the motion." United States v. One Tintoretto Painting Entitled "The Family With Saint Catherine And Honored Donor" and Silberberg, 691 F.2d 603, 606 (2d Cir. 1982), citing Quinn, supra, 613 F.2d at 445.

 For the reasons set forth below, defendants' motion is granted.

 It is not disputed that plaintiff was issued a federal crime insurance policy insuring plaintiff's business premises at 164 Havemeyer Street in Brooklyn and that the administration of this policy is the responsibility of the Federal Emergency Management Agency ("FEMA"). Defendants assert that on September 23, 1981, they were notified that plaintiff had been burglarized on September 8, 1981, that on October 26, 1981, they were notified that plaintiff had been burglarized on October 5, 1981, and that claim numbers were assigned to each claim. It is not disputed that on December 14, 1981, plaintiff first sent proof concerning its claimed losses to defendants and that thereafter a claims adjuster was assigned to investigate the validity of the loss claims submitted by plaintiff. Defendants state that the adjuster was unable to verify certain receipts submitted by plaintiffs and that on April 23, 1982, defendants notified plaintiff that its claims were being denied.

 Defendants offer two arguments in support of their motion for summary judgment. First, they argue that the terms of plaintiff's insurance policy required plaintiff to submit proof of loss within 60 days of each loss, that plaintiff failed to meet this condition and filed loss claims documents after the 60-day period, and that plaintiff consequently may not recover under the policy. Second, defendants argue that, even if plaintiff's evidence of loss had been timely filed, plaintiff could not recover as a matter of law because plaintiff has failed to verify adequately its losses.

 The terms of the federal crime insurance policy under which plaintiff makes its claim are codified at 44 C.F.R. § 83.26, which provides, in pertinent part, as follows:

 
"6. Insured's duties when loss occurs. Upon knowledge of loss or of an occurrence which may give rise to a claim for loss, the insured shall: (a) give notice thereof as soon as practicable to law enforcement authorities and to the insurer through any of its authorized agents, and (b) file detailed proof of loss, duly sworn to, with the Insurer through its authorized agents within sixty (60) days after the discovery of loss."
 
. . .
 
"10. Action against insurer. No action shall lie against the Insurer unless, as a condition precedent thereto, there shall have been compliance with all the terms of this Policy and the applicable regulations of the Federal Insurance Administration, nor until ninety (90) days after the required proofs of loss have been filed with the Insurer . . . ."

 Defendants argue that plaintiff failed to comply with condition no. 6 of the policy by failing to file a timely proof of loss for either of its claims and that, accordingly, under policy condition no. 10, plaintiff is not entitled to maintain this action.

 "Courts are bound to give effect to terms established by the federal government as a condition precedent to an action against the government when those terms are clear and unambiguous." Zeil Realty Corp. v. Director, Federal Emergency Management Agency, No. 80-6278, slip op. at 2 (S.D.N.Y. Nov. 4, 1981), citing Rock Island, A&LR.R. Co. v. United States, 254 U.S. 141, 65 L. Ed. 188, 41 S. Ct. 55 (1920); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 92 L. Ed. 10, 68 S. Ct. 1 (1947). The court in Zeil Realty noted that "an insured's failure to comply with a federal insurance policy requirement of submission of a proof of loss has been held to preclude recovery under the policy" and granted summary judgment against the insured. Id. Accord, Williamsburgh Doll & Novelty Corp., Inc. v. Giuffrida, No. 81-1036 (E.D.N.Y. May 6, 1982) (Nickerson, J.); Klein v. Pierce, 554 F. Supp. 18 (S.D.N.Y. 1982) (Werker, J.).

 It is undisputed that plaintiff discovered its burglary losses immediately after their alleged occurrence on September 8 and October 5, 1981. It is also undisputed that, while plaintiff gave defendants notice of its alleged losses of September 8 and October 5, 1981, in short order, it was not until on or about December 14, 1981, that plaintiff first sent details concerning its claimed losses to defendants' agents. Assuming arguendo that this submission was sufficient to constitute a "detailed proof of loss," as plaintiff asserts, it was nevertheless not filed within 60 days after the discovery of the September 8 or October 5, 1981 losses. Accordingly, plaintiff ...


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