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

403
CA 10-02141
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.


MICHAEL STOPANI AND WENDY STOPANI,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

ALLEGANY CO-OP INSURANCE COMPANY,
DEFENDANT-APPELLANT.


TRAYNOR, SKEHAN AND MARKS, ROCHESTER (JEFFREY H. MARKS OF COUNSEL),
FOR DEFENDANT-APPELLANT.

GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order (denominated decision) of the Supreme Court,
Monroe County (William P. Polito, J.), entered July 13, 2010 in a
breach of contract action. The order granted the motion of plaintiffs
to dismiss defendant’s ninth affirmative defense.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the ninth affirmative defense is reinstated.

     Memorandum: In this breach of contract action involving a
dispute over fire insurance coverage, plaintiffs moved to dismiss the
ninth affirmative defense alleging that defendant insurer properly
disclaimed coverage based on plaintiffs’ failure to submit sworn proof
of loss within the time limit set forth in the insurance policy. We
agree with defendant that Supreme Court erred in granting the motion.
Pursuant to CPLR 3211 (b), a plaintiff may move to dismiss a defense
on the ground that it has no merit (see Fireman’s Fund Ins. Co. v
Farrell, 57 AD3d 721, 723). When reviewing a motion to dismiss an
affirmative defense, “all of defendant’s allegations must be deemed to
be true and defendant is entitled to all reasonable inferences to be
drawn from the submitted proof” (Grunder v Recckio, 138 AD2d 923,
923). The motion must be denied if there is any doubt with respect to
the availability of a defense (see Nahrebeski v Molnar, 286 AD2d 891).

     Here, pursuant to the insurance policy, plaintiffs were required
to submit proof of loss within 60 days of defendant’s demand for such
proof. Defendant submitted evidence in support of the motion
establishing that plaintiffs received its demand for proof of loss in
the mail on March 6, 2009. Specifically, defendant’s claims manager
averred in an affidavit that plaintiff Michael Stopani called her on
that day and acknowledged receipt of the demand letter, which was sent
                                 -2-                           403
                                                         CA 10-02141

by defendant two days earlier via regular first class mail. On March
9, 2009, plaintiffs received another copy of the demand letter sent to
them by certified mail. It is undisputed that plaintiffs did not
submit proof of loss to defendant until May 8, 2009, which was more
than 60 days from their alleged receipt of the first letter but fewer
than 60 days from their admitted receipt of the second letter.

     As a general rule, “[w]hen an insurer gives its insured written
notice of its desire that proof of loss under a policy of fire
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” (Igbara
Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201,
209-210; see Turkow v Erie Ins. Co., 20 AD3d 649, 649-650). Where, as
here, the insurer’s demand for proof of loss is sent by two different
methods on the same day, the 60-day period should be measured from the
date the insured first receives the demand letter. This rule is
consistent with the reciprocal principle that “the moment from which
the timeliness of an insurer’s disclaimer is measured is the date on
which it first receives information that would disqualify the claim”
(2540 Assoc. v Assicurazioni Generali, 271 AD2d 282, 283 [emphasis
added]). If the rule were otherwise, an insured could extend
indefinitely the time within which he or she is required to submit
proof of loss by simply refusing to accept the demand letter sent by
certified mail. Because defendant alleged that plaintiffs failed to
submit proof of loss within 60 days of their first receipt of the
demand letter, it cannot be said that defendant’s ninth affirmative
defense lacks merit.

     With respect to the court’s conclusion that, even if the 60-day
period is measured from plaintiffs’ first receipt of the demand letter
on March 6, 2009, the delay is “de minimis and excusable under
contract law,” we agree with defendant that such a conclusion is
contrary to the rule that the failure to comply with a demand for
proof of loss within 60 days serves as “an absolute defense to an
action on the policy” (Igbara Realty Corp., 63 NY2d at 210).




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
