MARMORATO v. ALLSTATE INSURANCE COMPANY

While it is clear that plaintiff's refusal, upon advice of counsel, to answer certain of the questions put to him at the examination under oath was a breach of his contractual obligation to cooperate with defendant's investigation ( see, Evans v International Ins. Co., 168 A.D.2d 374), and that circumstances of the claim appear suspicious, we agree with the IAS Court that the noncompliance was not so willful or extreme as to warrant dismissal of the action without giving plaintiff one last chance to answer the questions ( see, Yerushalmi v. Hartford Acc. Indem. Co., 158 A.D.2d 407).

Concur — Sullivan, J.P., Rosenberger, Wallach, Kupferman and Williams, JJ.