Opinion
February 22, 1990
Appeal from the Supreme Court, New York County (Ethel Danzig, J.).
To prevail on its defense of noncooperation defendant insurer must show, by a preponderance of the evidence (Ausch v St. Paul Fire Mar. Ins. Co., 125 A.D.2d 43, 46, lv denied 70 N.Y.2d 610), an unreasonable and willful pattern of refusing to answer material and relevant questions or to supply material and relevant documents (Averbuch v Home Ins. Co., 114 A.D.2d 827, 829). Here, the insured's noncooperation was not so willful or extreme as to warrant the "extreme penalty" of unconditional dismissal without affording him a "last opportunity" to comply with the several legitimate document demands as yet unsatisfied (Pogo Holding Corp. v New York Prop. Ins. Underwriting Assn., 73 A.D.2d 605, 606; Ninth Fed. Sav. Loan Assn. v New York Prop. Ins. Underwriting Assn., 99 A.D.2d 456). Those documents too voluminous to transport may be produced at the insured's place of business at a date convenient to the insurer within the 30-day period we are giving the insured to produce all of the documents demanded.
Concur — Rosenberger, J.P., Asch, Ellerin and Wallach, JJ.