FINLEY v. ERIE AND NIAGARA INSURANCE ASSOCIATION (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  In this breach of contract action arising from defendant's denial of a claim made by plaintiff on a fire insurance policy, plaintiff appeals from an order that, inter alia, granted defendant's motion for summary judgment dismissing the complaint.  Contrary to plaintiff's contention, Supreme Court properly granted the motion.

Initially, we note that plaintiff failed to preserve for our review his contentions that the court erred in considering sworn statements submitted by plaintiff's first attorney, and that defendant is estopped from asserting the lack of a sworn proof of loss as an affirmative defense because defendant extended a settlement offer prior to litigation.  Those contentions may not be raised for the first time on appeal where, as here, they “ ‘could have been obviated or cured by factual showings or legal countersteps’ ” in the motion court (Oram v. Capone, 206 A.D.2d 839, 840, 615 N.Y.S.2d 799 [4th Dept. 1994] ).  We further note that, at oral argument before the motion court, plaintiff withdrew his cross motion, and he therefore has waived his present contention with respect to the cross motion (see e.g. Andrew v. Hurh, 34 A.D.3d 1331, 1331–1332, 824 N.Y.S.2d 546 [4th Dept. 2006], lv denied 8 N.Y.3d 808, 834 N.Y.S.2d 89, 865 N.E.2d 1256 [2007], rearg. denied 8 N.Y.3d 1017, 839 N.Y.S.2d 449, 870 N.E.2d 688 [2007];  Grimaldi v. Spievogel, 300 A.D.2d 200, 200, 751 N.Y.S.2d 737 [1st Dept. 2002] ).

We reject plaintiff's contention that the court erred in granting the motion.  “ ‘It is well settled that the failure to file sworn proofs of loss within 60 days of the demand therefor constitutes an absolute defense to an action on an insurance policy absent a waiver of the requirement by the insurer or conduct on its part estopping its assertion of the defense’ ” (Bailey v. Charter Oak Fire Ins. Co., 273 A.D.2d 691, 692, 709 N.Y.S.2d 696 [3d Dept. 2000];  see Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 N.Y.2d 201, 209–210, 481 N.Y.S.2d 60, 470 N.E.2d 858 [1984];  Alexander v. New York Cent. Mut., 96 A.D.3d 1457, 1457, 949 N.Y.S.2d 305 [4th Dept. 2012] ).  Defendant, as the party seeking summary judgment, met its initial burden on the motion by establishing that plaintiff failed to provide a sworn proof of loss within the requisite time (see generally Schunk v. New York Cent. Mut. Fire Ins. Co., 237 A.D.2d 913, 914, 655 N.Y.S.2d 210 [4th Dept. 1997] ), and that defendant did not waive the requirement.  In response, plaintiff failed to raise a triable issue of fact whether he substantially complied with the proof of loss requirement (cf. Delaine v. Finger Lakes Fire & Cas. Co., 23 A.D.3d 1143, 1144, 806 N.Y.S.2d 320 [4th Dept. 2005] ).

We reject plaintiff's contention that he raised a triable issue of fact by submitting his deposition testimony in which he averred that he timely submitted the requisite proof of loss to defendant, and that the court made an improper credibility determination in rejecting that testimony and his testimony regarding a lack of knowledge of the cause of the fire.  Although “we agree with the general premise that credibility is an issue that should be left to a [factfinder] at trial, ‘there are of course instances where credibility is properly determined as a matter of law’ ” (Sexstone v. Amato, 8 A.D.3d 1116, 1116, 778 N.Y.S.2d 635 [4th Dept. 2004], lv. denied 3 N.Y.3d 609, 786 N.Y.S.2d 812, 820 N.E.2d 291 [2004] ).  Neither this Court nor the motion court is “ ‘required to shut its eyes to the patent falsity of a defense’ ” (id., quoting MRI Broadway Rental v. United States Min. Prods. Co., 242 A.D.2d 440, 443, 662 N.Y.S.2d 114 [1st Dept. 1997], affd 92 N.Y.2d 421, 681 N.Y.S.2d 783, 704 N.E.2d 550 [1998] ).  Here, we conclude that the court properly determined that plaintiff's deposition testimony was “self-serving and incredible on these points, permitting summary judgment in favor of” defendant (Curanovic v. New York Cent. Mut. Fire Ins. Co., 307 A.D.2d 435, 439, 762 N.Y.S.2d 148 [3d Dept. 2003];  see Rickert v. Travelers Ins. Co., 159 A.D.2d 758, 759–760, 551 N.Y.S.2d 985 [3d Dept. 1990], lv denied 76 N.Y.2d 701, 557 N.Y.S.2d 878, 557 N.E.2d 114 [1990] ).