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EUO no-show: Declaratory Judgment substantiatedJanuary 26, 2018

Hertz Vehs. LLC v Significant Care, PT, P.C., 2018 NY Slip Op 00456 (1st Dept. 2018)

The affidavit of the Hertz claims handler personally assigned to this claim, as corroborated by the NF-10 denial of claim form (Wausau Bus. Ins. Co. v 3280 Broadway Realty Co. LLC, 47 AD3d 549, 549 [1st Dept 2008]; see also American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 842 [1st Dept 2015]), stated that the date Pavlova’s bill was received by the insurer was July 18, 2014. Hertz therefore established its compliance with 11 NYCRR 65-3.5(b) by generating the first EUO scheduling letter within 15 days of receipt of the provider’s bill, and compliance with 11 NYCRR 65-3.6(b), by generating the second EUO scheduling letter less than 10 days after the first nonappearance on August 7, 2014.

Hertz also established proof of mailing because it included an affidavit of service, which was executed by the person who mailed the EUO notices and who attested that each was mailed by regular mail to the address provided on the claimant’s claim form, as well as to claimant’s attorney, in a “postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York” (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]; see also Deluca v Smith, 146 AD3d 732, 732 [1st Dept 2017]).

Pavlova’s argument, raised for the first time on appeal, that the second EUO nonappearance date was not a non-appearance because the claimant’s counsel was present, and because there was a statement on the record which not only acknowledged claimant’s nonappearance, but also agreed to reschedule the EUO, is unpreserved and unavailing.

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