Supreme Court got it wrong but I saw a tactical error in the EUOSeptember 16, 2016
State Farm Mut. Auto. Ins. Co. v Thompson, 2016 NY Slip Op 51222(U)(Sup. Ct. Kings Co. 2016)
This was a non-contact DJ Case. Plaintiff relied on the EUO of its insured who said he never hit the EIP. The EUO was properly sworn to. The court held that the EUO was inadmissible. I will just say look at where the opinion came from.
My bewilderment centers around what happened at the EUO of the insured. At this EUO, the interlocutor discussed the EUO that took place of the EIP. And what was missing from the motion? The EUO of the EIP.
Now, I get it: the EIP says the insured driver hit her. The driver says otherwise. Why put in evidence that will defeat a prima facie showing? I get that. My problem is that when you confront your insured about what happened at the EUO of the EIP, you invite a Court to ask for what? The EUO of the EIP. And of course, that EUO will defeat a 3212(b) application and a 3215(f) application.
Just an observation.