Mallory v Allstate Ins. Co.

Mallory v Allstate Ins. Co. 2011 NY Slip Op 08912 Decided on December 6, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
L. PRISCILLA HALL
PLUMMER E. LOTT
SHERI S. ROMAN, JJ.
2011-00367
(Index No. 18410/10)

[*1]Maxine Mallory, etc., appellant,

v

Allstate Insurance Company, respondent.




Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y.
(Norman H. Dachs of counsel), for appellant.
Feldman, Rudy, Kirby & Farquharson, P.C., Jericho, N.Y.
(Brian R. Rudy of counsel), for
respondent.


DECISION & ORDER

In an action, inter alia, to recover the proceeds of a fire insurance policy, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated December 13, 2010, which denied her motion pursuant to CPLR 3211(b) to dismiss the defendant's first, second, and third affirmative defenses.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action, inter alia, to recover the proceeds of a fire insurance policy. The defendant asserted several affirmative defenses based on policy exclusions. The plaintiff moved to dismiss the defendant's first, second, and third affirmative defenses on the ground that the defendant was precluded from raising those defenses as a result of the defendant's failure to comply with 11 NYCRR 216.6(c) in processing the plaintiff's claim. The Supreme Court properly denied the motion. In De Marinis v Tower Ins. Co. of N.Y. (6 AD3d 484, 486-487), this Court held that a failure to comply with 11 NYCRR 216.6(c) does not preclude an insurance company from relying on a policy exclusion to disclaim coverage. We decline the plaintiff's invitation to overrule De Marinis. Accordingly, the plaintiff did not demonstrate that the defenses were without merit as a matter of law (see CPLR 3211[b]; Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 880, 882).
SKELOS, J.P., HALL, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court