RUBIN v. WILLIAMS (1997)

Judgment, Supreme Court, New York County (Charles Ramos, J.), entered July 16, 1996, dismissing plaintiffs' complaint, and bringing up for review an order of the same court and Justice, entered on or about May 21, 1996, which denied plaintiff's motion for summary judgment and granted defendants' cross motion for summary judgment, unanimously affirmed, with costs.   Appeal from the order unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

The fire insurance policy issued by defendants to cover loss to plaintiffs' building provided that a loss under the policy was payable 60 days after receipt of proof of loss “and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this company of an award as herein provided.”   The parties were unable to agree on the total amount of the loss, and an appraisal proceeding resulted in an award filed October 28, 1994.   Defendants' full payment of the award prior to December 27, 1994 was timely, and defendants were not obligated to make part payment of the claim prior to that date (Cohen v. New York Prop. Ins. Underwriting Assn., 65 A.D.2d 71, 78, 410 N.Y.S.2d 597;  Catalogue Serv. v. Insurance Co., 74 A.D.2d 837, 425 N.Y.S.2d 635).   There, accordingly, was no breach of contract and no violation of General Business Law § 349.

MEMORANDUM DECISION.