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Another unsuccessful 4518(a) challengeSeptember 16, 2016

Sin Med., P.C. v Travelers Ins. Co., 2016 NY Slip Op 51246(U)(App. Term 2d Dept. 2016)

(1) Contrary to the Civil Court’s conclusion, defendant’s failure to establish that the EUO scheduling letters constituted evidence pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518 is of no consequence. Defendant did not offer the EUO scheduling letters to establish the “truth” of any matters asserted therein, but rather to show that the letters had been sent. As the letters were not offered for a hearsay purpose, they did not need to qualify as business records pursuant to CPLR 4518

(2) Furthermore, defendant established, based upon sworn stenographic transcripts, that plaintiff’s assignor had failed to appear for the duly scheduled EUOs

The 4518 argument lost luster when the Court held that policy declaration sheets did not have to be in evidence to be considered along with denial of  claim forms.  By analogy, EUO letters and IME letters were next to be considered under the “it is not a 4518 rule” doctrine.

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