Ayyub v. Smith

—Appeal from an order of Supreme Court, Allegany County (Nenno, J.), entered October 30, 2000, which, inter alia, denied the cross motion of defendant CGU Insurance Company for summary judgment. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs. Memorandum: Rukhsana Ayyub (plaintiff) was injured when she was struck by a motor vehicle operated by defendant Julie Ann Smith. After plaintiffs commenced this action seeking payment on their claim for no-fault benefits, CGU Insurance Company (defendant), Smith’s insurer, requested a second medical examination of plaintiff. Supreme Court properly denied the cross motion of defendant seeking summary judgment dismissing the complaint against it based upon plaintiffs refusal to submit to that examination. Even assuming, arguendo, that the second examination is a condition precedent to coverage, we conclude that there is an issue of fact whether, by its actions prior to the commencement of the action, defendant “denied or repudiated the claim sufficient to excuse [plaintiffs]” from compliance with that condition precedent (Raymond v Allstate Ins. Co., 94 AD2d 301; see, Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d 835, 836; Beckley v Otsego County Farmers Coop. Fire Ins. Co., 3 AD2d 190, 194, lv dismissed 2 NY2d 990). Furthermore, defendant failed to establish in support of its cross motion that the request for a second medical examination was reasonable under the terms of the policy. Present — Green, J.P., Wisner, Scudder, Gorski and Lawton, JJ.