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VICTORIA CAMERA, INC. v. GUIFFRIDA

June 29, 1983

Victoria Camera, Inc., Plaintiff,
v.
Louis O. Guiffrida, Director, Federal Emergency Management Agency, Defendant



The opinion of the court was delivered by: POLLACK

Decision and Opinion

 Milton Pollack, District Judge:

 This action was commenced by Victoria Camera, a corporation no longer actively in business, against the Director of the Federal Emergency Management Agency, ["FEMA"], pursuant to 12 U.S.C. § 1749bbb-11. Plaintiff seeks to recover for four alleged burglary losses covered by federal crime insurance policies. Plaintiff herein claims for losses that occurred at its storeroom facilities at 1545 Broadway, New York, New York, on October 6, October 16, December 20, 1980 and March 23, 1981. The plaintiff claims $15,000, the policy limit, on each of the claims. Defendant FEMA has refused to pay these claims. Plaintiff, however, has received payment of $60,000 in connection with four other burglaries that it claimed for from the defendant.

 This case was tried to the Court. For reasons appearing below, the Court finds that the plaintiff is not entitled to any recovery and the complaint is accordingly dismissed in all respects.

 The Federal Crime Insurance Policies

 The terms of the insurance policies under which the plaintiff claims are set forth in 24 C.F.R. § 1933.26 (1979). These Regulations provide in part:

 
Insured's duties when loss occurs. Upon knowledge or discovery 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.

 24 C.F.R. § 1933.26(6) (emphasis added).

 
Books and Records. The insured shall keep records of all the insured property in such manner that the Insurer can accurately determine therefrom the amount of loss . . .

 24 C.F.R. § 1933.26(4).

 The defendant asserts that the plaintiff is not entitled to recover under its policies as it failed to comply with the requirement that sworn proof of loss be filed within 60 days, as it did not keep adequate records from which the amount of the losses could be accurately determined, and as plaintiff knowingly included false information on its claims.

 The Claims Were Not Timely Made The following table indicates the dates on which the plaintiff signed the required proof of loss forms: Date of Burglary Date Proof of Loss Signed October 6, 1980 March 13, 1981 October 16, 1980 March 13, 1981 December 20, 1980 April 13, 1981 March 23, 1981 September 3, 1981

 Clearly, the proof of loss forms were executed substantially more than 60 days after the plaintiff discovered the losses. *fn1" ...


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