Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2018 NY Slip Op 50864(U)(App. Term 2d Dept. 2018)
“Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ) and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [*2]). Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claim” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff has not provided any basis to disturb the Civil Court’s order.”
The unanswered question is assuming that the provider sets forth valid reasons for not attending the EUO and a disclaimer is issued, what is the remedy? Does the insurance carrier always prevail? Or, is the disclaimer without prejudice to compelling the entity to appear for an EUO? I think the new Fourth Department case of Progressive v. Elite and the older Second Department case of Park v. Long Island call into question the remedy for this discreet type of breach. But that is a discussion for another day.