The opinion of the court was delivered by: Stewart, District Judge:
MEMORANDUM DECISION ORDER
In this diversity action, plaintiff Gould Investors, L.P.
("Gould"), sued defendant, The General Insurance Company of
Trieste and Venice ("General Insurance"), for an alleged
breach of an insurance contract. Defendant now moves for
summary judgment dismissing the complaint pursuant to Rule 56
of the Federal Rules of Civil Procedure.
The plaintiff entered into a General Insurance fire
insurance contract bearing number GP2038 (the "Policy")
against casualties occurring at 370 Lexington Avenue ("370
Lexington") in New York City. The Policy was for a term to run
from September 30, 1987 until September 30, 1988. Plaintiff's
coverage under the Policy was subject to a $1,000,000 limit
per occurrence with a $10,000 deductible.
The genesis of the instant lawsuit lies in water damage to
electrical equipment caused by a broken pipe at 370 Lexington
on July 15, 1988. Gould claimed damages under the Policy
amounting to $379,359. Defendant's calculations of plaintiff's
damages only amounted to $6,300.
The Policy contained provisions required by section 3404 of
the New York State Insurance Law.*fn1 In particular, the
Policy stated that:
The insured, as often as may be reasonably
required, shall . . . submit to examinations
under oath by any person named by this company .
. . and as often as may be reasonably required,
shall produce for examination all books of
account, bills, invoices and other vouchers . . .
at such reasonable time and place as may be
designated by this company or its representative.
Further, the Policy stated that no suit on the Policy could be
sustained unless the requirements of the Policy were
By letter dated January 26, 1989 (the "January 26th letter")
defendant's adjusters, RJS Adjustment Corporation, advised
plaintiff's adjuster, Brokers Adjustment Company, that since
there was a wide discrepancy between the figures, "[u]nder the
circumstances, we can give no consideration to your claim
presentation unless you wish to provide a more detailed
itemized presentation as to how your electrician arrived at
On February 17, 1989, defendant requested by letter that
plaintiff appear for an examination under oath on March 10,
1989. The letter also consisted of a detailed and lengthy
request for documents, including tax returns for the four
previous years and any documents relating to any other
insurance claims over the previous five years.
Plaintiff requested an adjournment of the examination under
oath until April 12, 1989. In addition, plaintiff requested a
copy of defendant's expert's report. Defendant agreed to the
request and adjournment. The agreement was confirmed by a
letter signed by the parties on March 6, 1989. However, the
examination under oath did not take place on April 12th
because plaintiff did not appear. Plaintiff's in-house
counsel, Leon Sena, alleges that on April 10, 1989, he advised
the office of defendant's then counsel, Richard Realmuto, that
plaintiff would not be able to attend
the examination. Sena alleges that he was told by Realmuto's
office that Realmuto would return his call when Realmuto
returned to the office. Realmuto denies that Sena called his
office. In any event, it is undisputed that no return call was
made by Realmuto agreeing to adjourn the April 12th
On July 13, 1989 plaintiff initiated this action by service
on defendant of a summons and complaint. Defendant answered on
July 31, 1989. On July 14, 1989, allegedly unaware that
plaintiff had instituted an action, defendant's then counsel,
Richard Realmuto, scheduled another examination under oath for
August 2, 1989. Plaintiff refused to attend that scheduled
examination upon advice of counsel.
Defendant argues that the only issue before the court
relating to the instant motion is whether plaintiff's "wilful
defaults" constitute a material breach of the Policy and a
failure of a condition precedent to bring an action under the
Plaintiff contends that the only issue before the court is
whether defendant is entitled to hold an examination ...