INSURANCE COMPANY OF STATE OF PENNSYLVANIA v. LUBO (2001)

Ordered that this motion and cross motion are denied, and it is further ordered that the respondents shall appear and submit to an examination under oath at a time and place to be agreed upon by the parties within 45 days of the date of this Order which is being sent to both attorneys by the court.   The petitioner shall not exclude either respondent during the examination, however, the respondents shall not discuss or confer with each other about any answer to a question.   Petitioner shall provide an interpreter, if needed, at Petitioner's expense.

Petitioner's demand, at the scheduled examination on December 5, 2000, that the examination of each claimant be held outside the presence of the other was unreasonable in view of the absence of any such provision in the insurance policy and in the absence of any evidence, or even a reasonable suspicion, of fraud or collusion on the part of the claimants.   Moreover, it is clear from the papers submitted that the examination of Wolfgang Lubo had already been held on July 5, 2000 making petitioner's conduct on December 5, 2000 not only unjustified but unnecessary as well.   Finally, the conduct of the claimants was not so extreme and did not amount to a pattern of refusal or persistent noncooperation so as to warrant granting the petition without another opportunity to appear for an examination under oath (see, 232 Broadway Corp. v. New York Property Ins. Underwriting Ass'n, 206 A.D.2d 419, 422, 615 N.Y.S.2d 42.)

JOSEPH F. LISA, J.