We dissent and would affirm.
Plaintiff Benedict Raymond (Raymond) was involved in an automobile accident on January 30,1978. At the time of *307the accident he was insured under an automobile liability policy issued by defendant. In strict compliance with the provisions of defendant’s policy, Raymond submitted a proof of claim form, dated March 2, 1978. After receiving the completed form, it is undisputed that defendant paid Raymond more than $2,500 in reimbursement for his medical expenses and loss of earnings.
From 1978 until January 21,1982 there was no communication between the parties. By letter, dated January 21, 1982, Anthony G. Gross (Gross), who is Raymond’s attorney, sent a $1,975 medical bill to defendant, which they rejected in a “denial of claim form,” dated February 22, 1982. In pertinent part, defendant informed Raymond: “Any and all payments after that date [June-78] are denied due to lack of cooperation and notice”.) On page two of this “denial of claim form” Raymond was advised:
“if you wish to contest this denial, you have the
FOLLOWING OPTIONS:
“1. You may file a written complaint with: new york
STATE INSURANCE DEPARTMENT * * *
“2. You may submit this dispute to arbitration * * *
“3. You may bring a lawsuit * * *
“if you are contesting the denial of your claim and
WISH TO FILE A COMPLAINT”.
Examination of page 2 reveals that Gross, on behalf of Raymond, rejected the three numbered options and instead decided to complain to defendant. Thus, right on this form, Gross wrote, dated March 30, 1982: “In the accident of January 30, 1978 claimant sustained serious personal injuries, resulting in his being unable to return to work from the date of the accident to the present time. The medical report has just been received. Claimant was forced to move to Trinidad. The denial of claim by Allstate Ins. Co. for lack of cooperation and notice is unjustified. Claimant is entitled to lost earnings and medical expenses incurred by reason of the injuries sustained in this accident.”
Based upon this continued dialogue with defendant, we, unlike the majority, do not find that there is any issue of fact concerning repudiation that would prevent the granting of summary judgment. Therefore, when the defendant *308on June 1, 1982, demanded a new proof of claim from Raymond, he had an obligation under the policy provisions to supply it.
Insurance regulations of this State require the execution of a written proof of claim under oath when requested by the insurer (11 NYCRR 65.2 [a]). Furthermore, paragraph 9 of the policy mandates the filing of proof of claim forms as often as may reasonably be required which detail particulars of the injury and loss. Finally, paragraph 6 of the policy states that “[n]o action shall lie against * * * [defendant] unless, as a condition precedent thereto, the insured [Raymond] shall have fully complied with all the terms of this policy”.
It is undisputed that Raymond deliberately failed to comply with the policy terms by not filing an updated proof of loss. The fact that Raymond commenced a lawsuit against defendant in May, 1982 does not excuse him from responding. The case of Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn. (76 AD2d 759, affd 53 NY2d 835), is dispositive of the issue involved herein. As we said in Lentini (supra, p 761): “Plaintiff’s failure to furnish written proofs of loss as required by the insurance contract and demanded by defendant (Insurance Law, § 172) is an absolute defense to the action * * * The fact that defendant did not request written proofs of loss until after the action was commenced did not nullify plaintiff’s contractual obligation to complete and submit such forms upon defendant’s request”. In our view, defendant’s motion for summary judgment dismissing the action was correctly granted.
Carro and Lynch, JJ., concur with Kassal, J.; Ross, J. P., and Fein, J., dissent in an opinion by Ross, J. P.
Judgment, Supreme Court, Bronx County, entered on February 4, 1983, reversed, on the law, the judgment vacated, the motion for summary judgment denied and the complaint reinstated. Appellants shall recover of respondent one bill of $75 costs and disbursements of this appeal. The appeal from the order of said court entered on January 7, 1983, is dismissed as having been subsumed by the appeal from the judgment.