        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

711
CA 11-01520
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.


HAROLD ALEXANDER, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

NEW YORK CENTRAL MUTUAL, DEFENDANT-RESPONDENT.


MICHAEL J. KIEFFER, ROCHESTER, FOR PLAINTIFF-APPELLANT.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (TIMOTHY P.
BARNA OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Monroe County (David Michael Barry, J.), entered March 25, 2011. The
judgment granted the motion of defendant for summary judgment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the provision dismissing
the complaint and granting judgment in favor of defendant as follows:

          It is ADJUDGED and DECLARED that defendant is not
     obligated to indemnify plaintiff for any property theft
     losses arising from the burglary of plaintiff’s residence on
     December 19, 2008,

and as modified the judgment is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking a judgment
declaring, inter alia, that defendant is obligated to indemnify
plaintiff for the property theft losses resulting from the burglary of
his home. Supreme Court properly resolved the merits of the action in
favor of defendant, but erred to the extent that it granted
defendant’s motion for summary judgment dismissing the complaint
rather than declaring the rights of the parties (see Maurizzio v
Lumbermens Mut. Cas. Co., 73 NY2d 951, 954), and we therefore modify
the judgment accordingly. “When an insurer gives its insured written
notice of its desire that proof of loss under a policy of . . .
insurance be furnished and provides a suitable form for such proof,
failure of the insured to file proof of loss within 60 days after
receipt of such notice, or within any longer period specified in the
notice, is an absolute defense to an action on the policy, absent
waiver of the requirement by the insurer or conduct on its part
estopping its assertion of the defense” (Igbara Realty Corp. v New
York Prop. Ins. Underwriting Assn., 63 NY2d 201, 209-210; see
Insurance Law § 3407 [a]; Aryeh v Westchester Fire Ins. Co., 138 AD2d
                                 -2-                           711
                                                         CA 11-01520

337, 338, lv denied 73 NY2d 703). It is undisputed that defendant
demanded that plaintiff submit a sworn proof of loss and provided the
necessary form, and that plaintiff failed to comply with the demand.
Defendant therefore has an absolute defense to the action on the
policy (see Anthony Marino Constr. Corp. v INA Underwriters Ins.
Co., 69 NY2d 798, 800; Stopani v Allegany Co-op Ins. Co., 83 AD3d
1446, 1447; Bailey v Charter Oak Fire Ins. Co., 273 AD2d 691, 692).

     Contrary to plaintiff’s contention, his unsworn statement of loss
and receipts for the stolen items were not sufficient to comply with
the demand (see Maleh v New York Prop. Ins. Underwriting Assn., 64
NY2d 613, 614; Darvick v General Acc. Ins. Co., 303 AD2d 540; Aryeh,
138 AD2d at 338). The policy required that plaintiff provide
defendant, “within 60 days after [its] request, your signed, sworn
proof of loss,” and thus the “unsworn statement[] of loss do[es] not
satisfy the contractual or statutory requirement to serve defendant[]
with sworn proofs of loss” (Bailey, 273 AD2d at 693).




Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court
