The reasonably convenient EUOFebruary 18, 2022

Arcadia Acupuncture, P.C. v Nationwide Ins. Co., 2021 NY Slip Op 51258(U)(App. Term 2d Dept. 2021)

“With respect to the claims received by defendant between May 11, 2018 through June 22, 2018, the record demonstrates, prima facie, that the EUO scheduling letters were timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff, that plaintiff failed to appear for those EUOs, and that defendant timely denied those claims on the ground that plaintiff had failed to appear. However, as we find that a triable issue of fact exists as to whether those EUOs were scheduled to be held at a place that was “reasonably convenient” to plaintiff (see 11 NYCRR 65-3.5 [e]; Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), defendant failed to establish that it is entitled to summary judgment dismissing so much the complaint as sought to recover upon the claims received between May 11, 2018 through June 22, 2018. Consequently, neither party is entitled to summary judgment upon those claims.”

I have to wonder what proof is necessary for a defendant to prove that the EUO or IME is reasonably convenient? As to EUOS – in this virtual world – that should not be an issue. As to IMEs, is this based on a county by county approach?