Thomas H. Fahrenholz, Appellant, v. Security Mutual Insurance Company et al., Respondents

Thomas H. Fahrenholz, Appellant, v Security Mutual Insurance Company et al., Respondents. [738 NYS2d 623] [MAJORITY] —Appeal from that part of an order of Supreme Court, Erie County (Fahey, J.), entered May 11, 2001, that granted defendant Security Mutual Insurance Company’s cross motion to dismiss the second cause of action. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: We affirm, for reasons stated in the decision at Supreme Court (Fahey, J.), the order granting that part of the cross motion of defendant Security Mutual Insurance Company (Security Mutual) seeking dismissal of the second cause of action. In that cause of action, plaintiff sought a decíaration that Security Mutual is required to submit to an appraisal pursuant to Insurance Law § 3404 (g). We add only that Insurance Law § 3404, in its present form, does not eliminate the prohibition against seeking specific performance of the appraisal provision in the standard fire insurance policy set forth in CPLR 7601. Further legislative action is required to eliminate that prohibition. Present — Pine, J.P., Scudder, Kehoe, Burns and Gorski, JJ.