125 Belle Harbour, LLC and Fortress Development Group, LLC v. Underwriters at Lloyd’s, London, Index 654266/2013 (Sup.Ct. N.Y.Cty. 2015)

In a breach of contract action concerning first party property insurance coverage, the Honorable Eileen A. Rakower granted the defendant insurer’s pre-answer motion to dismiss a Complaint which sought coverage for vandalism damage to commercial property. The Court held that the insureds had submitted an untimely Proof of Loss by failing to provide it within the time furnished by a written extension from the insurer.

During the investigation phase of the claim in question the defendant had demanded an examination under oath (“EUO”) and a sworn statement in Proof of Loss (“the proof”). The insureds requested an adjournment of the EUO and an extension of time to submit the proof. Defendant had agreed to postpone the EUO and advised, by email, that if the insureds intended to go forward on the adjourned date, they would have to submit the proof a week in advance. However, the email had also noted that if the insureds sought a further postponement of the EUO, then they would nonetheless have to provide the proof by an outside date certain, specified in the email. The EUO was indeed adjourned again, but the insureds submitted the proof nine days after the date certain.

In opposition to the defendant’s motion to dismiss the insureds argued that they had only to submit the proof prior to the date the EUO was actually conducted. The court disagreed, holding that the defendant’s extension made it perfectly clear that the proof had to be provided on or before the date certain the defendant had specified. The insureds’ failure to comply was an absolute defense to their action.

Mark I. Binsky Of Counsel to Abrams Gorelick represented the defendant.