May 31, 1984
Order, Supreme Court, New York County (Eugene R. Wolin, J.), entered June 28, 1983, which, inter alia, granted the motions of the defendants Guildhall Insurance Company, Ltd. (Guildhall) and Chubb Custom Market, Inc. (Chubb), and the cross motion of defendant Quincy Mutual Insurance Company (Quincy), for summary judgment dismissing the complaint, is unanimously modified, on the law, to the extent of denying the motions of Guildhall and Chubb and the cross motion of Quincy, with leave to renew these motions and the cross motion, if plaintiff Ruth Vivinetto does not appear for an examination under oath within 30 days from the date of entry of the order disposing of this appeal and otherwise affirmed, without costs. ¶ Plaintiffs Ned J. and Ruth Vivinetto are husband and wife. They brought the instant action against defendants Guildhall, Chubb and Quincy to recover for the loss of jewelry and personal property which allegedly resulted from the burglary of plaintiffs' premises, against which defendants insured. After issue was joined, defendants Guildhall and Chubb moved, and defendant Quincy cross-moved, for summary judgment, upon the basis that the policy provisions required plaintiffs to cooperate with the carriers in investigating the claim and, that plaintiffs had breached such requirement when plaintiff wife failed to appear for a pre-action deposition. In granting the motions and cross motion, Special Term held that plaintiff wife's action had been willful and deliberate. We disagree. Examination of the record does not support the conclusion that the plaintiff wife by her nonappearance intended to obstruct the carriers' investigation. Thus, we deny the defendants' motions and cross motion, and grant them leave to renew, if plaintiff wife does not comply with our order to submit to examination.
Concur — Murphy, P.J., Kupferman, Sandler, Ross and Kassal, JJ.