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Failure to Appear at Deposition Was a Material Breach of a Condition Precedent to the Promise to Indemnify

The Second Department determined that the assignees of no-fault insurance benefits were not entitled to a second chance to appear at a deposition called by the plaintiff. Appearance at the deposition was a condition precedent to the promise to indemnify and the failure to appear was a material breach precluding recovery:

“It is well established that the failure to comply with the standard policy provision requiring disclosure by way of submission to an examination under oath, as often as may be reasonably required, as a condition precedent to performance of the promise to indemnify, constitutes a material breach” of the policy, precluding recovery of the policy proceeds … . In support of that branch of its motion which was for summary judgment, the plaintiff, upon renewal, submitted evidence establishing “that it twice duly demanded an examination under oath” from the assignees, that the assignees twice failed to appear, and that the plaintiff “issued a timely denial of the claims” arising from the assignees’ provision of medical services to the assignors … . Based upon the foregoing, the plaintiff established its prima facie entitlement to judgment as a matter of law … .

In opposition to the plaintiff’s prima facie showing, the assignees failed to submit evidence of a reasonable excuse for their noncompliance with the demands for examinations under oath, or of partial performance on their part … . The assignees also failed to raise a triable issue of fact as to the reasonableness or propriety of the demands for the examinations under oath … . Moreover, “the [assignees’] breach of the policy was not cured by [their] belated expression of a willingness to cooperate which was made more than two years after the loss and only in response to the insurer’s motion for summary judgment” … . “[A]n insurance company is entitled to obtain information promptly while the information is still fresh to enable it to decide upon its obligations and protect against false claims. To permit [the defendants] to give the information more than [two] years after the [loss] would have been a material dilution of the insurance company’s rights” … . IDS Prop Cas Ins Co v Stracar Med Servs PC, 2014 NY Slip Op 02902, 2nd Dept 4-30-14

 

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