Justice Lucy Billings
Insurer American Transit Insurance (ATI) moved for a default judgment against nine defendants, and for summary judgment against Stand-Up MRI. ATI sought a judgment declaring that it did not owe a duty to compensate defendants under Insurance Law §5103 for expenses incurred from a collision involving defendant Curry, and a car for which ATI issued a policy. ATI based its motion on Curry’s non-appearance for an examination under oath (EUO). The court noted 11 NYCRR §65-3.5(e) required that ATI’s request for the EUO must be based on the application of objective standards for there to be a specific objective justification supporting the use of the EUO. It stated that nowhere did ATI’s admissible documents, or its witnesses, indicate any justification or explanation for Curry’s EUO. Also, the court noted while it was only four months since Curry provided her address on her insurance application, no witness attested that Curry did not notify ATI of a change in address. Further, it found no witness testified to Curry’s nonappearance at either of the scheduled EUOs, stating the special investigation unit director’s recitation of the contents of business records showing Curry’s nonappearance was hearsay. Thus, ATI’s motions were denied.
