Proof of no-show?December 26, 2017

St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co., 2017 NY Slip Op 51732(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s contention, the proof submitted by defendant established that plaintiff had failed to appear for duly scheduled examinations under oath (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52054[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Furthermore, “the failure to set forth the dates of the scheduled examinations in the denial of claim form[s] did not render the denial[s] conclusory, vague, or without merit as a matter of law”

I would love to see someone make a motion to compel the law firm that sent the EUO letters (and represents the carrier on this claim) to comply with a non-party subpoena to substantiate the basis of the no-show.   see CPLR 3212(f);  NYCCCA 1201.  It would be an interesting transcript or set of transcripts.

NYCCCA 1201 (” subpoena and a subpoena duces tecum, and the powers of the court with reference to them, shall be governed by the CPLR, except that they shall be served only within the city of New York or in a county adjoining such city.  But the court, upon motion of a party which need not be on notice, may issue either kind of subpoena and permit its service elsewhere outside the city of New York if satisfied that the interests of justice would be served thereby.

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