Stein v. National General Insurance Co., 2020 N.Y. Slip Op. 31814(U), 2020 WL 3124237 (N.Y. Sup. Ct. June 9, 2020)

This case involved the insured’s claim for water damage to his apartment caused by a broken pipe. After he reported the claim, the insurer, National General Insurance Company, inspected the loss and paid approximately $30,000. After the insured engaged a public adjuster, who estimated the loss to be more than $400,000, the insured demanded an appraisal, which National General rejected.

Subsequently, National General demanded that the insured provide a sworn proof of loss within 60 days and submit to an examination under oath—both of which were required under the policy as a condition precedent to coverage. During the EUO, the insured admitted that although he received the demand for the sworn proof of loss, he never submitted one. He attempted to cure his breach by submitting the proof of loss at the EUO, which was held 63 days after the insured received National General’s demand.

National General moved to dismiss the complaint based on the insured’s breach of the policy’s proof of loss condition. The court granted the motion, holding that “to the extent that the [insured] contends that [National General’s] failure to serve its demand on his adjuster constitutes a defense to this motion, such an argument is contrary to the plain language of New York Insurance Law § 3407, which only requires service of the demand be made upon the insured.” The insured’s argument that the court could not consider his admission at the EUO was rejected on the ground that “documentary evidence may be supplemented by affidavits or deposition testimony that are not disputed.”

The decision is important because it makes clear under New York law that the breach of a policy condition requiring the submission of a sworn proof of loss within the 60-day period set forth in the policy constitutes an absolute defense to coverage. Also important is the court’s holding that an insurer may rely on an insured’s undisputed admissions at an examination under oath to support the position that the insured received a demand for a proof of loss but failed to submit it within the required time frame.

National General Insurance Company was represented by partner Kevin F. Buckley and associate Samuel B. Weiss.