Goel v. Tower Insurance , 948 N.Y.S.2d 244 ( 2012 )

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.