SOMERSTEIN CATERERS OF LAWRENCE INC v. INSURANCE COMPANY OF STATE OF PENNSYLVANIA (1999)

Order, Supreme Court, New York County (Edward Lehner, J.), entered November 5, 1998, which, to the extent appealed from as limited by appellants' brief, granted the cross motion of respondent Insurance Company of the State of Pennsylvania (“ISOP”) to dismiss the complaint in the first consolidated action, and for summary judgment in the second consolidated action on ISOP's third cause of action, directing appellant insureds to return $200,000 in insurance proceeds advanced to them by ISOP, unanimously affirmed, with costs.

Appellant was the insured under a fire policy issued by ISOP. Appellant's refusal to present its treasurer or bookkeeper for examination under oath respecting the loss claimed under the subject policy constituted a material breach of the policy's cooperation clause and, as such, precluded appellants' recovery of policy proceeds (see, Argento v. Aetna Cas. and Sur. Co., 184 A.D.2d 487, 584 N.Y.S.2d 607;  Rosenthal v. Prudential Prop. & Cas. Co., 2d Cir., 928 F.2d 493).

MEMORANDUM DECISION.