New York Supreme and/or Appellate Courts Appellate Division, First Department
June 26, 2012
TOWER INSURANCE COMPANY OF NEW YORK, ET AL.,
Goel v Tower Ins. Co. of N.Y.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on June 26, 2012
Gonzalez, P.J., Tom, Andrias, Acosta, Freedman, JJ.
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 plaintiff's 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 plaintiff's conduct was not so willful as to require excusing defendants from liability (see Erie Ins. Co. v JMM Props., LLC, 66 AD3d 1282, 1285 ), 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 ).
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.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 26, 2012
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