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623 N.Y.S.2d 587
(Cite as: 213 A.D.2d 217, 623 N.Y.S.2d 587)

Supreme Court, Appellate Division, First
Department, New York.

Rochelle BAERGA, etc., Plaintiff-Respondent,

March 14, 1995.

Insurer moved for summary judgment on ground that insured breached cooperation clause. The Supreme Court, Bronx County, Silver, J., denied motion, and insurer appealed. The Supreme Court, Appellate Division, held that reasonableness of insured's failure to appear for examination under oath after her attorney was suspended from practice of law was question of fact precluding summary judgment on issue of breach of cooperation clause.


West Headnotes

Judgment k181(23)

Reasonableness of insured's failure to appear for examination under oath after her attorney was suspended from practice of law was question of fact precluding summary judgment on issue of breach of cooperation clause of insurance policy.

**587 D.T. D'Antonio, for respondent.

N.J. Brown, for appellant.



Order, Supreme Court, Bronx County (Howard Silver, J.), entered on or about October 5, 1994, which, inter alia, denied defendant's motion for summary judgment pursuant to CPLR 3212 dismissing the complaint, unanimously affirmed, without costs.

The IAS court properly determined that summary judgment in defendant's favor was barred by material triable issues of fact as to whether the plaintiff's failure to cooperate with the defendant in the investigation of the insurance claim, based upon plaintiff's failure to appear for a continued examination under oath, was a willful disregard of plaintiff's policy obligations, or was, in fact, due to the deteriorating physical and mental condition and subsequent suspension from the practice of law of plaintiff's former counsel (Abudayeh v. Fair Plan Ins. Co., 105 A.D.2d 764, 766, 481 N.Y.S.2d 711; Rosch v. Agway Ins. Co., 86 A.D.2d 929, 448 N.Y.S.2d 800).

Although the failure of an insured to submit to an examination under oath and to supply all relevant material in compliance with the provisions of an insurance policy has been held to constitute a material breach and to preclude recovery (Lentini Bros. Moving & Stor. Co. v. New York Prop. Ins. Underwriting Assn., 53 N.Y.2d 835, 440 N.Y.S.2d 174, 422 N.E.2d 819; Evans v. International Ins. Co., 168 A.D.2d 374, 562 N.Y.S.2d 692), the record below nevertheless reveals that the defendant insurer herein has not sustained its burden of proving that the plaintiff willfully refused to cooperate in the investigation **588 and to participate in the examination under oath in violation of the insurance contract (Yerushalmi v. Hartford Acc. & Indem. Co., 158 A.D.2d 407, 551 N.Y.S.2d 242), where, as here, the plaintiff appeared at an initial examination under oath but subsequently failed, allegedly by reason of her incapacitated counsel's conduct, to submit to subsequent examinations (Catalogue Serv. v. Insurance Co., 74 A.D.2d 837, 425 N.Y.S.2d 635).

A triable issue of fact as to the reasonableness of plaintiff's failure to appear for the examination has therefore been presented since the courts of this State have consistently held *218 that substantial compliance by the insured with the requests of the insurer will suffice in satisfying the cooperation clause of an insurance policy (DePicciotto Corp. v. Wallis, 177 A.D.2d 327, 328, 575 N.Y.S.2d 881; Raymond v. Allstate Ins. Co., 94 A.D.2d 301, 305, 464 N.Y.S.2d 155), and since the plaintiff has submitted a detailed explanation of the events surrounding her alleged failure to cooperate, asserting that the suspension of her former attorney from the practice of law (Matter of Chasen, 181 A.D.2d 167, 587 N.Y.S.2d 159) provided a reasonable explanation for any alleged non-cooperation on her part (High Fashions Hair Cutters v. Commercial Union Ins. Co., 145 A.D.2d 465, 535 N.Y.S.2d 425; Sappah v. Cambridge Mut. Fire Ins. Co., 105 A.D.2d 911, 482 N.Y.S.2d 72).