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AZEEM v. COLONIAL ASSURANCE

96 A.D.2d 123 (1983)

Haamid Azeem et al., Respondents, v. Colonial Assurance Company et al., Appellants

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

November 4, 1983

Attorney(s) appearing for the Case

Hurwitz & Fine, P. C. (James D. Gauthier of counsel), for appellants.

Palmer, Greenman & Hurley (Thomas A. Palmer of counsel), for respondents.

HANCOCK, JR., J. P., and MOULE, J., concur with BOOMER, J.; CALLAHAN and DENMAN, JJ., dissent and vote to affirm in an opinion by CALLAHAN, J.

BOOMER, J.

In February, 1980, plaintiff Azeem's store was destroyed by fire and in March, 1981, he brought this action to recover under his fire insurance policy. The defendants, insurance companies, moved for summary judgment dismissing the complaint because of the plaintiff's failure to attend an examination under oath as required by the terms of the policy. Special Term granted the motion "unless the plaintiff, HAAMID AZEEM, makes himself available...

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