Pavlova v Nationwide Ins., 2021 NY Slip Op 50213(U)(App. Term 2d Dept. 2021)
“To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a plaintiff’s assignor failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the assignor, that the assignor twice failed to appear, and that the insurer issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ). Contrary to the determination of the Civil Court, the affirmations of defendant’s counsel, as well as the transcripts of the EUOs, were sufficient to establish that plaintiff’s assignor had failed to appear for the EUOs. It is irrelevant whether plaintiff’s assignor was represented by counsel, as defendant was only required to mail the EUO scheduling letters to plaintiff’s assignor (see 11 NYCRR 65-3.5 [e]; 3.6 [b]). Consequently, as plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion or otherwise challenge the implicit CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.”
We know if the letter is mailed to attorney and the attorney has knowledge that the Assignor’s address is wrong because it is evident on the mailed letter to the attorney, then it counts as service upon the Assignor. According to this case, we can skip the attorney all together, which is not good precedent.
BNE Clinton Med., P.C. v State Farm Mut. Auto Ins. Co., 2021 NY Slip Op 50083(U)(App. Term 2d Dept. 2020)
“Plaintiff’s contention that defendant failed to make a prima facie showing of its entitlement to summary judgment because defendant did not show that it had timely mailed “prescribed forms” upon learning of the accident (see 11 NYCRR 65-3.4) lacks merit, as such a showing is not part of an insurer’s prima facie burden when seeking summary judgment on the ground that a provider or the provider’s assignor failed to appear for duly scheduled EUOs (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ).”
Prescribed forms are not part of the no-show
21st Century Pharm., Inc. v Integon Natl. Ins. Co., 2020 NY Slip Op 51364(U)(App. Term 2d Dept. 2020)
“Plaintiff does not argue that defendant did not demonstrate its prima facie case. Rather, plaintiff argues that defendant’s EUO requests were unreasonable. However, 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 (see Interboro Ins. Co. v Clennon, 113 AD3d 596 ; 21st Century Pharm., Inc. v Ameriprise Ins. Co., 65 Misc 3d 134[A], 2019 NY Slip Op 51629[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; 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]). As plaintiff failed to raise a triable issue of fact, defendant is entitled to summary judgment dismissing the complaint.”
The split on objective reasons.
Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226(U)(App. Term 2d Dept. 2020)
“Where, as here, no other verification request is outstanding (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), the 30-day period for an insurer to pay or deny a claim (see 11 NYCRR 65-3.8 [a] ) based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there [*2]was a failure to comply with a condition precedent to coverage”.
This one is interesting because there were three (3) no shows. Assuming the second EUO was a reschedule, we are left to assume the third EUO would have been the “second” no-show. It would appear the movant in this weird situation would have to proffer evidence that the second EUO was somehow excused. Very interestging.
Accelerated Med. Supply, Inc. v Ameriprise Ins. Co., 2020 NY Slip Op 50741(U)(App. Term 2d Dept. 2020)
In an order dated April 12, 2017, the District Court denied defendant’s motion, finding that the letters scheduling the EUOs of plaintiff were defective because they did not specify the claims to which the letters pertained, and the court granted plaintiff’s cross motion”.
I mean in the scheme of things, if you decide not to attend an EUO, you really do so at your own peril.
Aries Chiropractic, P.C. v Ameriprise Ins. Co., 2019 NY Slip Op 52064(U)(App. Term 1st Dept. 2019)
I bolded the Unitrin case. The First Department has been all over the place lately. For anyone to predict how that Court will rule on anything in the no-fault universe would be engaging in an unwise prediction.
“Contrary to plaintiff’s contention, defendant’s denial of claim form did not need to set forth the dates of the EUOs for which plaintiff had failed to appear. “Had it been the intent of the Department of [Financial Services] to require the carrier to set forth [the dates of the scheduled EUOs] in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] ), it would have so provided” (A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 ; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778, 779 ; cf. Unitrin Advantage Ins. Co. v All of NY, Inc., 158 AD3d 449 [1st Dept 2018]). “
Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2019 NY Slip Op 51684(U)(App. Term 2d Dept. 2019)
“Furthermore, as this court has repeatedly stated, 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 [*2][provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ….”
If you feel the Court is wrong and you know what the outcome will be, you are best to file an action is a different Department or in a federal court and hope for a different outcome. This appears to be a foolish use of resources in everyone’s part.
Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY, 2019 NY Slip Op 51631(U)(App. Term 2d Dept. 2019)
“At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue was whether the letters scheduling plaintiff’s assignor’s examinations under oath (EUOs) were timely and properly mailed. The only witness at trial was an employee of defendant who testified as to defendant’s policies and procedures regarding mailing EUO scheduling letters.
Contrary to the finding of the Civil Court, defendant established that the initial and follow-up letters scheduling an EUO had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ).”
Well, the representative was credible.
Ultimate Health Prods., Inc. v Travelers Ins. Co., 2019 NY Slip Op 51620(U)(App. Term 2d Dept. 2019)
EUO no-show case: dismissal affirmed
“In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 ; Hamilton v Blackwood, 85 AD3d 1116 ; Zeltser v Sacerdote, 52 AD3d 824 ). Upon a review of the testimony and evidence which was admitted at trial without objection, we find no basis to disturb the Civil Court’s finding. “
Well this is not surprising.
Actual Chiropractic, P.C. v State Farm Ins., 2019 NY Slip Op 51552(U)(App. Term 2d Dept 2019)
“Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting the 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”
Well heck, where have we seen this before? Appealing the same issue and expecting different results? Definition of insanity?