KINSMAN v. ROYAL INDEMNITY COMPANY

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant's motion for summary judgment. Defendant established its initial entitlement to judgment as a matter of law by submitting proof in admissible form that plaintiff failed to comply with a condition precedent under the underinsured motorist's coverage of the insurance policy ( see, Sulner v. G.A. Ins. Co., 224 A.D.2d 205, 205-206, lv denied 88 N.Y.2d 805; see also, Oppenheimer Co. v. Oppenheim, Appel, Dixon Co., 86 N.Y.2d 685, 688, 690-691). Plaintiff, however, raised an issue of fact whether defendant waived the condition precedent ( cf., Sulner v. G.A. Ins. Co., supra, at 206).