MANAGEMENT CO INC v. PEERLESS INSURANCE

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Supreme Court, Appellate Division, Second Department, New York.

V.M.V. MANAGEMENT CO., INC., et al., respondents, v. PEERLESS INSURANCE, appellant, et al., defendant.

Decided: February 28, 2005

HOWARD MILLER, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, WILLIAM F. MASTRO, and ROBERT A. LIFSON, JJ. Feldman, Rudy, Kirby & Farquharson, P.C., Westbury, N.Y. (Bruce W. Farquharson of counsel), for appellant. Timothy Wedden, New York, N.Y., for respondents.

In an action, inter alia, to recover damages for breach of contract, the defendant Peerless Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated November 12, 2003, as denied that branch of its motion which was for summary judgment dismissing the complaint based on the plaintiffs' failure to comply with the cooperation clause of the subject policy.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The appellant moved, inter alia, for summary judgment dismissing the complaint on the ground that the plaintiffs breached the cooperation clause of the subject insurance policy when they failed to provide documents and information regarding their financial condition at the time of the loss.   The Supreme Court properly denied that branch of the appellant's motion which was based upon an alleged breach of the cooperation clause.   The individual plaintiff provided two recorded interviews, appeared for two examinations under oath at which he answered all of the questions posed by the appellant's attorney, provided authorizations to release the plaintiffs' records, and provided numerous exhibits and photos.   The plaintiffs' duty to cooperate with the insurer was satisfied by substantial compliance (see Avarello v. State Farm Fire and Cas. Co., 208 A.D.2d 483, 616 N.Y.S.2d 796;  DePicciotto Corp. v. Wallis, 177 A.D.2d 327, 575 N.Y.S.2d 881;  High Fashions Hair Cutters v. Commercial Union Ins. Co., 145 A.D.2d 465, 535 N.Y.S.2d 425).   Furthermore, the appellant failed to show that certain documents and information regarding the financial conditions of the plaintiffs at the time of the loss which were not produced were material and relevant to the investigation or settlement of this claim (see McLaughlin v. State Farm Fire and Cas. Co., 255 A.D.2d 298, 679 N.Y.S.2d 324;  cf. Maurice v. Allstate Ins. Co., 173 A.D.2d 793, 570 N.Y.S.2d 654).

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