General

Hannah Furniture, Inc., Appellant, v. Transtate Insurance Company, Respondent, et al., Defendant

238 A.D.2d 546657 N.Y.S.2d 951·New York Supreme Court, Appellate Division·1997·NY

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Opinion

Hannah Furniture, Inc., Appellant, v Transtate Insurance Company, Respondent, et al., Defendant. [657 NYS2d 951] [MAJORITY] —In an action to recover proceeds due under an insurance policy, the plaintiff appeals from an order of the Supreme Court, Kings County (Dowd, J.), dated May 17, 1996, which granted the motion of the defendant Transtate Insurance Company pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it. Ordered that the order is affirmed, with costs. The plaintiff’s failure to file a sworn statement as proof of its loss within 60 days after a demand for it by the defendant insurer constitutes an absolute defense to the action (see, Insurance Law § 3407 [a]; Marino Constr. Corp. v INA Underwriters Ins. Co., 69 NY2d 798; Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201; Goldman v Allstate Ins. Cos., 220 AD2d 381). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.