Wingates, LLC, 21 F. Supp. 3d at 220 ("[t]o the extent the [p]laintiffs represent that they will comply with [EUO] requests in the future, '[b]ecause failure to perform a condition precedent is an absolute defense to an insurance claim, subsequent offers to comply are of no consequence'") (quoting Blakeslee v. Royal Ins. Co. of Am., 1995 WL 122724, *7 (S.D.N.Y. 1995)); Allstate Ins. Co. v. Longwell, 735 F. Supp. 1187, 1193, 1194-95 (S.D.N.Y. 1990) (granting summary judgment despite insured's offer in his opposition papers to answer questions to which he had previously invoked his Fifth Amendment privilege "because the criminal proceeding [had since] concluded"; insured's "belated offer to answer the questions and to sign the EUO transcript [does not] cure[] the breach of his obligations under the policy . . . as too much time elapsed, defeating the purpose of the cooperation clause"). The law is clear that the failure to attend an EUO constitutes a material breach of an insurance policy and that repeated, unexplained failures to attend warrant a finding of willfulness.

For the reasons that follow, the Court concludes that Plaintiff failed to cooperate with PIIC in its investigation, a condition precedent that is an "absolute defense to an insurance claim[.]"Blakeslee v. Royal Ins. Co. of Am., No. 93 Civ. 1633 (MBM), 1995 WL 122724, *7 (S.D.N.Y. Mar. 22, 1995); Allstate Ins. Co. v. Longwell, 735 F. Supp. 1187, 1193 (S.D.N.Y. 1990) ("[T]he failure of an insured to cooperate with the insurer is a breach of a significant condition precedent of the policy which bars the insured's recovery under the policy."). The Court need not consider whether Plaintiff's conduct violated the Fraud Provision or whether Plaintiff's Cross-Motion has merit because Plaintiff's breach of the Cooperation Condition, by itself, is sufficient to bar recovery under the Policy.

The insurer's rights with respect to an EUO are not, as Plaintiff characterized them, divine in nature, but, rather, contractual. Dyno-Bite, Inc., v. Travelers Companies, 80 AD2d 471; Allstate Insurance Co., v. Longwell, 735 F.Supp. 1187 (S.D.NY 1990). Absent any indication that an insured was forced to sign a policy which contained a cooperation clause requiring him or her to submit to an EUO, the insurer is permitted to ask, and an insured is required to answer, any material and relevant questions concerning the claim.

It arises, as well, in the context of no claim by defendant of any State involvement, a claim which, had it been made premised upon the legislative insurance fraud preventative measures, might seem to be dubious. Cf. Allstate Ins. Co. v. Longwell, 735 F. Supp. 1187, 1194 (S.D.N.Y. 1990) ("The mere fact that the State has mandated [that cooperation clauses in fire insurance policies] appear in the policy, which are protective of both the insured and the insurer, does not mean that the policy is somehow transformed into anything other than a private contractual relationship."). See also United States v. Moeller, 402 F. Supp. 49, 56 (D.Conn. 1975); State v. Hovrud, 805 P.2d 250, 251 (Wash.Ct.App. 1991), rev'd denied, 815 P.2d 265 (Wash. 1991).

See id.; see also Piekarski, 743 F. Supp. at 42 (" Colorado River is inapplicable. There is no concurrent state proceeding to which this Court can defer in the instant case. Instead, there is one case, which originally was in state court, but now has been properly removed to federal court."); Allstate Ins. Co. v. Longwell, 735 F. Supp. 1187, 1192 (S.D.N.Y. 1990) ( Colorado River abstention is not appropriate when case has been removed to federal court because "there is no longer anything pending in the state courts."). Burford abstention is designed to protect "complex state administrative processes from undue federal interference."

“[F]ederal courts consider abstaining under Colorado River only in cases where there are concurrent and simultaneous federal and state proceedings.” Village of Westfield v. Welch's, 170 F.3d 116, 122 (2d Cir. 1999) (emphasis added); see also, e.g., Allstate Ins. Co. v. Longwell, 735 F.Supp. 1187, 1192 (S.D.N.Y. 1990) (Colorado River abstention not appropriate when “there is no longer anything pending in the state courts”). Without an “underlying foreclosure action,” there is “no underlying state judicial proceeding to be interfered with,” and the Court cannot abstain under Colorado River.

Abstention doctrines like Colorado River “are predicated on the existence of pending state litigation on parallel issues[] and . . . are inapposite [where] there is no longer anything pending in the state courts.” Allstate Ins. Co. v. Longwell, 735 F.Supp. 1187, 1192 (S.D.N.Y. 1990). The fact that a parallel state court proceeding once existed during federal litigation is not one of the “extraordinary and narrow exception[s] to the duty of a [d]istrict [c]ourt to adjudicate a controversy properly before it, ” Colorado River, 424 U.S. at 813 (citation omitted).

See, e.g. , Eagley , 2015 WL 5714402, at *8 ("A policyholder cannot satisfy his or her duty to cooperate, however, by attending an EUO but refusing to answer material questions."); Harary, 988 F. Supp. at 102 ("The insured's obligation to cooperate is not met by ‘partial testimony.’ "); Allstate Ins. Co. v. Longwell, 735 F. Supp. 1187, 1195 (S.D.N.Y. 1990) (refusal to answer material questions at EUO barred recovery under the policy); Country-Wide Ins. Co. v. Gotham Med., P.C. , 50 Misc.3d 712, 20 N.Y.S.3d 861 (N.Y. Sup. Ct. 2015), aff'd , 154 A.D.3d 608, 63 N.Y.S.3d 349 (1st Dep't 2017) ("Dr. Scheer's failure to answer all relevant questions at the EUO, as required by the provisions of the applicable insurance policies, constitutes a material breach of contract, and precludes recovery by defendant."). In cases of suspected arson, "it is well settled that questions regarding an insured's personal finances are material and relevant to the investigation."

All the New York cases cited by Evanston in support of its argument are either decisions on motions for summary judgment or decisions where the plaintiff conceded it had not satisfied the condition precedent. See Allstate Ins. Co. v. Pierre, 123 A.D.3d 618 (1st Dep't 2014) (summary judgment); IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 A.D.3d 1005 (2d Dep't 2014) (summary judgment); Cross v. State Farm Ins. Co., 926 F. Supp. 2d 436 (N.D.N.Y. 2013) (summary judgment); Sirob Imps., Inc. v. Peerless Ins. Co., 958 F. Supp. 2d 384, 389 (E.D.N.Y. 2013) ("It is undisputed that the Plaintiff failed to complete repairs within the required two-year period—a condition precedent in the policy to recovering replacement costs."); Allstate Ins. Co. v. Longwell, 735 F. Supp. 1187 (S.D.N.Y. 1990) (summary judgment). Additionally, Evanston asserted its condition precedent argument as an affirmative defense in its Answer.

a. Applicable Legal Standards Regarding an Insured's Policy Obligations Under New York law, where an insured's cooperation is required under the relevant policy, the deliberate failure of the " ‘insured to cooperate with the insurer is a breach of a significant condition precedent of the policy which bars the insured's recovery under the policy,’ " Fernandez v. Philadephia Indem. Ins. Co. , No. 16cv2533 (JCM), 2018 WL 502709, at *5 (S.D.N.Y. Jan. 19, 2018) (quoting Allstate Ins. Co. v. Longwell , 735 F.Supp. 1187, 1193 (S.D.N.Y. 1990) ), as well as the insurer's duty to defend, Lewis v. Nationwide Mut. Ins. Co. , 202 A.D.2d 816, 817, 609 N.Y.S.2d 106 (3rd Dep't 1994) ("Clearly, ... the failure to cooperate vitiates the policy and entitles the insurer to disclaim any liability to defend."). In addition, as "unambiguous provisions of an insurance contract must be given their plain and ordinary meaning" under New York law, "consent-to-settle provisions – requiring insured parties to give insurers notice before entering into voluntary settlement agreements – are routinely enforced as a condition precedent to coverage."