From Casetext: Smarter Legal Research

Avarello v. State Farm and Casualty Company

Appellate Division of the Supreme Court of New York, Second Department
Oct 3, 1994
208 A.D.2d 483 (N.Y. App. Div. 1994)

Opinion

October 3, 1994

Appeal from the Supreme Court, Nassau County (McCaffrey, J.).


Ordered that the order is affirmed, with costs.

In order to have prevailed on its defense of non-cooperation, the defendant-insurance company was required to show, by a preponderance of the evidence, that the plaintiff-insured had engaged in an unreasonable and willful pattern of refusing to answer material and relevant questions or to supply material and relevant documents (see, Yerushalmi v. Hartford Acc. Indem. Co., 158 A.D.2d 407; Averbuch v. Home Ins. Co., 114 A.D.2d 827). In addition, it should be noted that the duty of an insured under the cooperation clause of a fire insurance policy is satisfied by substantial compliance (see, DePicciotto Corp. v. Wallis, 177 A.D.2d 327; High Fashions Hair Cutters v. Commercial Union Ins. Co., 145 A.D.2d 465).

In this case, the conditional order was entirely proper. The delay herein in complying with discovery was neither lengthy nor willful, and the insured provided a satisfactory explanation for the delay. Moreover, the requested documents have already been furnished to the insurer; and the plaintiff, who had previously submitted himself to an examination under oath within a few months after the fire, has forwarded a signed, notarized copy to the defendant (see, 232 Broadway Corp. v. Calvert Ins. Co., 149 A.D.2d 694; 2423 Mermaid Realty Corp. v. New York Prop. Ins. Underwriting Assn., 142 A.D.2d 124). Bracken, J.P., Balletta, Copertino and Hart, JJ., concur.


Summaries of

Avarello v. State Farm and Casualty Company

Appellate Division of the Supreme Court of New York, Second Department
Oct 3, 1994
208 A.D.2d 483 (N.Y. App. Div. 1994)
Case details for

Avarello v. State Farm and Casualty Company

Case Details

Full title:JAHN AVARELLO, Respondent, v. STATE FARM AND CASUALTY COMPANY, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 3, 1994

Citations

208 A.D.2d 483 (N.Y. App. Div. 1994)
616 N.Y.S.2d 796

Citing Cases

DeLuca v. RLI Ins. Co.

In addition, the insured is under no obligation "to combine with the insurer to present a sham defense" (…