Opinion
Argued November 14, 1974
Decided December 18, 1974
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ROBERT J. TRAINOR, J.
Don B. Panush for appellant.
Mark Barret Wiesen for respondent.
MEMORANDUM. The order of the Appellate Division should be affirmed, without costs. The record establishes unequivocally that communications and letters were exchanged between plaintiff's lawyer and the insurer over an extended period of time, before and after an action at law was barred by the policy provisions. But the record fails to establish in evidentiary form, as distinguished from argumentative conclusions, that the insurer ever receded from its contention that plaintiff had submitted and was persisting in the assertion of a fraudulently exaggerated claim. This is not the stuff of waiver or estoppel which could lull anyone into a belief that the "negotiations" had passed from contention into settlement. Indeed, plaintiff in trying to bolster the alleged telephone conversations, in order to establish a "lulling" of plaintiff by the insurer, submits a stream of letters. These letters separately and collectively reveal consistent intransigence by the insurer in refusing to co-operate with plaintiff's lawyer or to make any offer beyond the $2,000 figure. Hence, no waiver or estoppel, crediting plaintiff's evidentiary assertions, as the court must, is shown.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, RABIN and STEVENS concur.
Order affirmed in memorandum.