Opinion
September 29, 1995
Appeal from the Supreme Court, Erie County, Rath, Jr., J.
Present — Pine, J.P., Lawton, Callahan, Balio and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted summary judgment to defendant United States Fidelity Guaranty Company, Inc. (USFG). USFG met its burden of establishing plaintiff's lack of cooperation (see, 304 Meat Corp. v New York Prop. Ins. Underwriting Assn., 188 A.D.2d 382). Plaintiff persistently failed to comply with the provision of the insurance policy issued to him by USFG that required him to submit to an examination under oath and provide certain relevant documents and records. That persistent failure to comply constitutes a material breach of the policy and precludes recovery under it (see, Johnson v Allstate Ins. Co., 197 A.D.2d 672, lv denied 82 N.Y.2d 664; Argento v Aetna Cas. Sur. Co., 184 A.D.2d 487, 487-488; Azeem v Colonial Assur. Co., 96 A.D.2d 123, affd 62 N.Y.2d 951).