INSURED FAILS TO PRODUCE REQUIRED DOCUMENTS FOLLOWING FIRE LOSS

INSURED FAILS TO PRODUCE REQUIRED DOCUMENTS FOLLOWING FIRE LOSS 131_C063

INSURED FAILS TO PRODUCE REQUIRED DOCUMENTS FOLLOWING FIRE LOSS

The insured, Myers, Smith & Granady, Inc. owned property in New York City, and had secured a one-year policy from the company covering loss from physical damage, including fire. The policy provided, among other things, that the insured would cooperate in the event of any loss, and would answer interrogatories, under oath. It barred any action against the company until all the conditions of the policy had been met. It contained the usual clause requiring suit to be filed within two years after a loss.

On August 5, 1988, the property was damaged by fire, and the loss was estimated at $327,377.84. Notice was given promptly. The company's inspectors determined the cause to be arson, and the company thereafter conducted four examinations of the insured under oath, all of which had to be adjourned because of the insured's failure to bring requested documents. The company sent the insured copies of each of the transcripts, but only the first one was executed and returned. The company asserted the insured never produced the documents it requested, but the insured claimed, at trial, the missing documents were lost in the fire. The company never denied nor paid the claim and contended its investigation was never concluded.

The insured filed suit on April 24, 1991, alleging breach of contract and "deceptive acts and practices" in violation of the New York statute.

The trial court granted summary judgment for the company and held the suit was filed too late, and failed to state a claim, and this was affirmed by the intermediate court.

On appeal by the insured to the Court of Appeals of New York, it agreed that the insured could not recover due to its failure to produce the missing documents and its failure to execute the transcripts which had been sent to it by the company.

The judgment entered in the courts below in favor of the company was affirmed.

(Myers, Smith & Granady, Inc., Appellant, v. New York Property Insurance Underwriting Association--Court of Appeals of New York--February 14, 1995--647 North Eastern Reporter 2d 1348.)