The plaintiffs alleged that their home and its contents were damaged as a result of a rainstorm. They filed a claim under a homeowners insurance policy issued by the defendant, Graphic Arts Mutual Insurance Company. Graphic Arts informed the plaintiffs that the damage to their home was covered under the policy. However, it disclaimed coverage for the damage to the plaintiffs’ personal property contained in the home. The plaintiffs were renovating their home and were adding a second floor. As part of the work, openings were made in the first floor roof for the addition of a stairway. In light of an imminent rainstorm, tarps were placed over the openings. Graphic Arts disclaimed coverage for the damages to the plaintiffs’ personal property on the ground that the tarps were not a “roof ” for the purposes of the “windstorm or hail” provision of the policy.

The plaintiffs commenced this action alleging, inter alia, in their second cause of action that Graphic Arts breached the contract of insurance by failing to compensate them for the damage to the contents of their home. They sought, among other things, damages for Graphic Arts’ alleged breach of contract and a judgment declaring that their loss was covered under the policy. Subsequently, Graphic Arts moved for summary judgment, in effect, declaring that the loss to the plaintiffs’ property was not covered under the policy and dismissing the second cause of action in the amended complaint to recover damages for breach of contract. The plaintiffs cross-moved for summary judgment declaring that the loss to their property was covered under the policy and for summary judgment on the issue of liability on the causes of action to recover damages for breach of contract. Supreme Court granted Graphic Arts’ motion and denied the plaintiffs’ cross motion. The plaintiffs then moved for leave to reargue. Supreme Court adhered to the original determination.

The Appellate Division affirmed. “Supreme Court properly adhered to… its original determination which granted… Graphic Arts’ motion… for summary judgment declaring that the contents of the plaintiffs’ home were not covered under the insurance policy…. Graphic Arts established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs’ personal property loss was not the result of one of the insured perils (cf. Wai Kun Lee v Otsego Mut. Fire Ins. Co., 49 AD3d 863, 864-865).” “Contrary to the plaintiffs’ contention, the tarps that had been placed over the openings in the first floor ceiling of their building did not come within the definition of the term ‘roof’ as used in the ‘windstorm or hail’ provision of the policy, which provided that damage to personal property caused by rain was not covered unless the rain entered the home as a result of wind or hail causing an opening in a ‘roof ’ (see Camden Fire Ins. Assn. v New Buena Vista Hotel Co., 199 Miss 585, 594- 597, 24 So 2d 848, 849-850; Diep v California Fair Plan Assn., 15 Cal App 4th 1205, 1208-1211, 19 Cal Rptr 2d 591, 593- 594; Aginsky v Farmers Ins. Exch., 409 F Supp 2d 1230, 1234, 1236; Nooney v Tower Group Cos., 2009 NY Slip Op 33229[U], [Sup Ct, Queens County 2009]; cf. Dewsnup v Farmers Ins. Co. of Oregon, 349 Or 33, 36-38, 43-45, 239 P3d 493, 494-496, 499). In opposition to Graphic Arts’ prima facie showing, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).”

“Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment declaring that the loss to the plaintiffs’ personal property is not covered by the subject insurance policy (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).”

Insured’s 60 Days to Provide Proof of Loss Begins Upon First Receipt of Demand

Stopani v Allegany Co-op Ins. Co.

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 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 suit able 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).