Majority
p. 645Zelig Sabel, Respondent, v Insurance Company of North America, Appellant. [676 NYS2d 478]
—In an action to recover the proceeds of an insurance policy, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Carson, J.), entered August 11, 1997, as denied that branch of its cross motion which was for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the cross motion which was for summary judgment dismissing the complaint is granted, and the complaint is dismissed.
p. 646
Without proffering any explanation, the plaintiff sought and obtained six adjournments of his examination under oath and subsequently refused to submit to such an examination unless the defendant waived its right to assert the affirmative defense of non-compliance with the cooperation provision of the subject policy. This conduct on the part of the plaintiff was willful and constituted a material breach of the policy precluding recovery by him (see, Cabe v Aetna Cas. & Sur. Co., 153 AD2d 653 ).
The plaintiff’s remaining contentions are without merit. Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.
Cases cited
- S. Lee Cabe v. Aetna Casualty & Surety Co. 153 AD2d 653 p. 646