EUO no-show defense sustainedAugust 29, 2014
Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 51310(U)(App. Term 2d Dept. 2014)
I often feel like this Plaintiff attorney is seeking to reinvent the wheel. It is just amazing how many times he appeals the SAME issues and (surprisingly) receives the SAME results. And each decision comments on one more subtle defect in this particular attorneys arguments. This is how bad law is made.
“In appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.”
(1) “EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures”
(2) “the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.”
(3) “Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard ”
(4) “Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion”