In Ocean Diagnostics Imaging P.C. v. State Farm Mut. Auto. Ins. Co. ; 2004-1541 K C. ; 2006 N.Y. Misc. LEXIS 459; ; NYSlipOp 50343(U) decided by the Appellate Term, Second Department on March 7, 2006, the court held that because defendant insurer failed to include the EUO endorsement in its opposition, its defense based upon failure to appear did not toll the thirty day period.
Separately, however, the court held that "[t]he affidavit submitted by defendant's special investigator was sufficient to demonstrate that the defense was based upon a "founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident" citing Central Gen. Hosp. v Chubb Group of Ins. Cos.
The case arising out of an appeal from a ruling in Kings County demonstrates the need to be thorough in preparing opposition papers and the benefits of attaching all supportive documents.