You know DFS does NOT approve of this disclaimer May 22, 2019

Hereford Ins. Co. v Forest Hills Med., P.C., 2019 NY Slip Op 03926 (1st Dept. 2019)

” Moreover, movant defendants failed to demonstrate a meritorious defense. The failure by the occupants of the vehicle to subscribe and return the transcripts of their examinations under oath violated a condition precedent to coverage and warranted denial of the claims (see Hertz Vehs., LLC v Gejo, LLC, 161 AD3d 549[1st Dept 2018]). “

I really find this basis to disclaim coverage disingenuous. The EIP came to the EUO, told his or her story, lied or did not lie. We go from there. I cannot fathom how the failure to return an EUO transcript – which is a sworn to document and which may be used against the deponent or the assignee as a matter of course – warrants the loss of no-fault benefits.

I am quite sure that DFS did not put the “and subscribe the same” (11 NYCRR 65-1.1[b]) language in the regulations to authorize the voiding of coverage due to the failure to sign the transcript. I also suspect this case will spur either an emergency amendment from DFS or an opinion letter. Thankfully, this appeared in the context of a motion to vacate a default, which means the Court of Appeals will not touch this matter, i.e., the failure to establish a reasonable excuse is reviewed under an abuse of discretion standard that will not be upset on appeal.

I think this basis for a disclaimer is the colloquial playing with fire.

Surgery peer review is not enough on its face May 22, 2019

Allstate Ins. Co. v Buffalo Neurosurgery Group, 2019 NY Slip Op 03749 (2d Dept. 2019)

” This action pursuant to Insurance Law § 5106(c) arises from a motor vehicle accident that occurred on February 6, 2013. Christopher Krull allegedly was injured in the accident, and he underwent spinal fusion surgery performed by P. Jeffrey Lewis of the defendant, Buffalo Neurosurgery Group”

“Here, we agree with the Supreme Court’s denial of that branch of the plaintiff’s motion which was for summary judgment on so much of the complaint as, in effect, sought a determination that it was not obligated to pay the defendant no-fault benefits relating to Krull’s surgery, since the surgery was not medically necessary. The peer review reports submitted in support of that branch of the motion failed to demonstrate, prima facie, that the surgery performed on Krull was not medically necessary “

Those surgery peer reviews, unsurprisingly, are insufficient to establish a prima facie entitlement to summary judgment.

Loss of Earnings May 20, 2019

Moshe v Country-Wide Ins. Co., 2019 NY Slip Op 29138 (Dis. Ct. Nassau Co. 2019)

Introductory thoughts

I love this case. It makes little sense for many reasons. But what is perplexing is how much of the income of Moshe is active? He missed a day of work – what business opportunities were missed? What passive income was lost due to his not being at work? I really do not know how the heck you prove any of that without expert testimony (see below)

But in the prior motion sequence, the judge prevented Defendant from obtaining a deposition. As can be seen in this decision, a deposition is absolutely necessary to figure out how you get to the $12,000 figure. I would have appealed that decision and stayed the trial.

Because when you read this decision, how is Countiwide going to really defend this case except to argue that Plaintiff cannot prove its case? The EUO in the underlying case had to do with the facility, not how its owner gets paid per diem. So this case, to me, is a mess. Plaintiff’s theory of recovery is amorphous, C-wide failed to get an absolutely necessary deposition to figure out how it will defend this case and the trial will be unwieldy.

The relevant allegations

“Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of monies claimed due as loss of earning for Moshe’s appearance at a November 10, 2015 examination under oath (EUO or deposition) taken in the context of a first-party no-fault insurance claim(s) submitted by Excel Surgery Center, LLC (Excel) of which Moshe is the owner.

There is no dispute that pursuant to the relevant provisions governing EUO’s involving first-party no-fault insurance claim(s) the deponent is entitled to ‘loss of earning’ caused by attendance at the EUO (22 NYCRR 65-3.5[e]).

As alleged in plaintiffs’ complaint, on or about November 6, 2015 — prior to the November 10, 2015 EUO — counsel for Excel advised counsel for Country-Wide Insurance Company (Country-Wide) that Moshe claimed a loss of earnings of $12,186.14 (Complaint at ¶ 24). In support thereof, and as previously requested by Country-Wide’s counsel (Complaint at ¶ 22), Excel’s counsel provided a redacted copy of Moshe’s 2014 joint Federal tax return which showed $320,000 in ‘Wages, salaries tips, etc.’ and an additional $2,604,942 in ‘Rental real estate, royalties, partnerships, S corporations, trusts, etc.’ (Complaint at ¶ 24; defendant’s exhibit D [tax return].) Despite demand for confirmation that full payment would be made at the conclusion of the deposition (Complaint at ¶ 24), Country-Wide neither committed to payment nor rejected same (Complaint at ¶ 26). Instead, following the EUO, on or about March 10, 2016 Country-Wide remitted $1,280.00 as its calculation of Moshe’s loss of earnings (Complaint at ¶ 36).

The within action was subsequently brought by plaintiffs seeking recovery of the difference between Moshe’s demand ($12,186.14) and Country-Wide’s payment ($1,280.00).”

The Court’s decision

“Consistent with the clear language of 11 NYCRR §65-3.5(e) and regardless of the formulaic manner in which the parties approach the calculation of lost earnings, the focus should be on the actual monetary loss incurred by reason of plaintiff’s attendance at the EUO. As defined by PJI 2:290, albeit in the context of personal injury, loss of earnings means “reduction in capacity to earn money”. That Moshe was entitled to payment of lost earnings caused by attendance at an EUO and not a physical injury is irrelevant to the meaning of the term and, hence, the method of calculation.

Movant and cross-movants fail to provide any particularity or evidence of what Moshe’s companies do, what was happening on November 10, 2015 or why Moshe’s unavailability for an undisclosed number of hours on that date caused earnings loss. Passivity alone is not the criteria – a day trader may be involved with purely passive assets but the inability to trade on a particular day may have consequences in monies lost that otherwise would not have been. Given the wholesale absence of relevant evidence supporting the parties’ respective claims, neither side has made the requisite prima facie showing.”


I think Plaintiff will need an expert economist to win. There is no way in this case that lay testimony can prove the amount of lost income within a reasonable certainty. In fact, had this been done in the beginning, this might have been a larger case. Alternatively, it could have been a smaller case. But without expert testimony, this case is just for the birds.

EUOs May 20, 2019

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2019 NY Slip Op 50759(U)(App. Term 2d Dept. 2019)

” 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 twice failed to appear and that the [insurer] issued a timely denial of the claim[]”

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 50760(U)(App. Term 2d Dept. 2019)

“We note that an EUO request letter which lists a contact at defendant’s law firm which is different from the attorney at the same law firm signing the otherwise sufficient affirmation of nonappearance of plaintiff at the duly scheduled EUO does not raise a triable issue of fact.”

App Term EUO cases (ad nauseam) May 12, 2019

LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co., 2019 NY Slip Op 50696(U)(App. Term 2d Dept. 2019)

” Furthermore, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment….”

Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 50700(U)(App. Term 2d Dept. 2019)

“Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment”

K.O. Med., P.C. v IDS Prop. Cas. Ins. Co., 2019 NY Slip Op 50687(U)(App. Term 2d Dept. 2019)

“Plaintiff correctly argues that the initial EUO scheduling letter sent to plaintiff had been sent more than 30 days after defendant had received the claims seeking $348.80, $204.41, $148.69, and $91.42. As a result, the request was a nullity as to those claims”

BC Chiropractic, P.C. v Farmers New Century Ins. Co.,2019 NY Slip Op 50680(U)(App. Term 2d Dept. 2019)

” While the Civil Court correctly noted that defendant’s January 13, 2012 letter was a delay letter, which did not toll defendant’s time to pay or deny the claim, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. [*2]Co., 35 AD3d 720 [2006]); and that the claim had been timely denied on that ground”

The common refrain here is that the objective basis for the EUO is not part of the an insurance carrier’s prima facie case.