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THE DEFENDANTS’ FAILURE TO APPEAR AT THE SCHEDULED EXAMINATIONS UNDER OATH BREACHED A CONDITION PRECEDENT FOR INSURANCE COVERAGE ENTITLING THE INSURER TO SUMMARY JUDGMENT ON ITS CAUSE OF ACTION FOR A DECLARATORY JUDGMENT OF NONCOVERAGE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff insurer was entitled to summary judgment for a declaratory judgment of noncoverage because the defendants did not appear at the scheduled Examinations Under Oath (EUOs):

Plaintiff insurer seeks a declaratory judgment of noncoverage based, among other things, on its allegations that defendants Munoz, Cameron, and Santiago (collectively, the claimants) each breached a condition precedent to coverage by failing to appear for properly noticed Examinations Under Oath (EUOs). In support of its motion for a default judgment against the defaulting defendants, plaintiff demonstrated through admissible evidence that the claimants each breached a condition precedent to coverage by failing to appear for properly and timely noticed EUOs … . The documentary evidence shows that plaintiff sent the EUO scheduling letters to the claimants within 15 business days of receiving the prescribed verification forms (in this case, NF-3 forms), as required … . Contrary to the motion court’s calculation, the 15-day period starts with receipt of the NF-3 forms, not the NF-2 Application for No-Fault Benefits forms … . State Farm Fire & Cas. Co. v Soliman, 2023 NY Slip Op 01949, First Dept 4-13-23

Practice Point: Failure to appear for an Examination Under Oath breaches a condition precedent in the insurance contract, entitling the insurer to a declaratory judgment of noncoverage.

 

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THE SUPERIOR COURT INFORMATION (SCI) DID NOT AFFIRMATIVELY PLEAD THE EXCEPTION... THE MURDER SECOND DEGREE COUNTS MUST BE DISMISSED AS INCLUSORY CONCURRENT COUNTS...