Goel v. Tower Insurance

Appellate Division of the Supreme Court of New York

Goel v. Tower Insurance

96 A.D.3d 629, 948 N.Y.S.2d 244

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 26, 2012

StatusPublished

This text of 96 A.D.3d 629 (Goel v. Tower Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Goel v. Tower Insurance, 96 A.D.3d 629, 948 N.Y.S.2d 244 (N.Y. Ct. App. 2012).

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Opinion

Order, Supreme Court, New York County (Anil Singh, J.), entered February 21, 2012, which denied defendants’ motion for summary judgment dismissing the complaint and directed plaintiff to appear for an examination under oath (EUO) within 90 days, unanimously affirmed, with costs.

Defendants did not establish that plaintiffs failure to comply with the coverage conditions by not sitting for an EUO and by not producing all of the documents sought by defendants, was willful noncompliance with the terms of the subject policy. The motion court properly considered the totality of the circumstances in concluding that plaintiffs conduct was not so willful as to require excusing defendants from liability (see Erie Ins. Co. v JMM Props., LLC, 66 AD3d 1282, 1285 [2009]), particularly where, as here, there is evidence to suggest that defendants may have also breached the terms of the policy. Moreover, the record shows that defendants did not act diligently to obtain plaintiff’s cooperation in a manner that was reasonably calculated to bring it about (see Utica First Ins. Co. v Arken, Inc., 18 AD3d 644 [2005]).

There is no basis, at this stage of the proceedings, to dismiss defendant Tower Group, Inc. from the action.

We have considered defendants’ remaining arguments and find them unavailing. Concur — Gonzalez, P.J., Tom, Andrias, Acosta and Freedman, JJ.

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Order, Supreme Court, New York County (Anil Singh, J.), entered February 21, 2012, which denied defendants’ motion for summary judgment dismissing the complaint and directed plaintiff to appear for an examination under oath (EUO) within 90 days, unanimously affirmed, with costs.

Defendants did not establish that plaintiffs failure to comply with the coverage conditions by not sitting for an EUO and by not producing all of the documents sought by defendants, was willful noncompliance with the terms of the subject policy. The motion court properly considered the totality of the circumstances in concluding that plaintiffs conduct was not so willful as to require excusing defendants from liability (see Erie Ins. Co. v JMM Props., LLC, 66 AD3d 1282, 1285 [2009]), particularly where, as here, there is evidence to suggest that defendants may have also breached the terms of the policy. Moreover, the record shows that defendants did not act diligently to obtain plaintiff’s cooperation in a manner that was reasonably calculated to bring it about (see Utica First Ins. Co. v Arken, Inc., 18 AD3d 644 [2005]).

There is no basis, at this stage of the proceedings, to dismiss defendant Tower Group, Inc. from the action.

We have considered defendants’ remaining arguments and find them unavailing. Concur — Gonzalez, P.J., Tom, Andrias, Acosta and Freedman, JJ.

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Bluebook (online)

96 A.D.3d 629, 948 N.Y.S.2d 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goel-v-tower-insurance-nyappdiv-2012.

Opinion

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