Mr. Five Boro took another dive – this time with the sharks

Mr. Five Boro took at dive in the IME no-show DJ matter of American Transit Ins. Co. v. Beltre, under Bronx Co. Index #: 310468/11 (Sup. Ct. Bronx Co. 2012 [Suarez, J.S.C.])

An attorney's statement, i.e., "he did not show up" is sufficient to support EUO defense

Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 2012 NY Slip Op 50579(U)(App. Term 2d Dept. 2012)

“Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs”

The latest line of attack in the IME no show and EUO no show wars has been the allegation that the affiant did not set forth a sufficiently detailed affidavit, proving that the claimant failed to attend his EUO’s.

In the case where the partner at the law firm swears out an affidavit that the Claimant did not show based upon the firm’s business practices, this is correct.  Where the affidavit, however, is based upon the affidavit of the person hired to conduct the EUO or IME, this type of elaborate business practice is not necessary.  Rather, a perfunctory attestation that the affiant was there and the Claimant failed to show would be sufficient.

EUO letters were mailed and the Claimant failed to attend the EUO: summary judgment granted

Points of Health Acupuncture, P.C. v Lancer Ins. Co., 2010 NY Slip Op 51455(U)(App.Term 2d Dept. 2010)

You have seem this before.

“Contrary to the Civil Court’s findings, defendant established the timely mailing of the EUO scheduling letters. Defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO in which he set forth in detail his firm’s standard office practice and procedure for the mailing of EUO scheduling letters (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230 [U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In addition, counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 [*2]Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since the appearance of the plaintiff at an EUO is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint. We note that, contrary to the Civil Court’s finding, the affidavit submitted by defendant’s no-fault specialist established that defendant timely mailed its denial of claim forms.”

Partner’s affirmation demonstrated the “no-show” component of an EUO no-show defense

Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 2010 NY Slip Op 50716(U)(App. Term 2d Dept. 2010)

“In opposition to plaintiff’s motion and in support of its cross motion for summary judgment, defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO. Counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for duly scheduled EUOs”

A partner’s affirmation is sufficient so show a non-appearance at an EUO.  The affirmation probably established how the partner knew that the Plaintiff failed to attend the EUO.  See generally, Progressive Classic Ins. Co. v. Kitchen, 46 A.D.3d 333 (1st Dept. 2007).

Partner's affirmation demonstrated the "no-show" component of an EUO no-show defense

Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 2010 NY Slip Op 50716(U)(App. Term 2d Dept. 2010)

“In opposition to plaintiff’s motion and in support of its cross motion for summary judgment, defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO. Counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for duly scheduled EUOs”

A partner’s affirmation is sufficient so show a non-appearance at an EUO.  The affirmation probably established how the partner knew that the Plaintiff failed to attend the EUO.  See generally, Progressive Classic Ins. Co. v. Kitchen, 46 A.D.3d 333 (1st Dept. 2007).

Personal knowledge as to EUO non-appearences has become a lot less personal

W & Z Acupuncture, P.C. v Amex Assur. Co. 2009 NY Slip Op 51732(U)(App. Term 2d Dept. 2009)
“In opposition to plaintiff’s motion and in support of its cross motion for summary judgment, defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO. Counsel alleged facts sufficient to establish that plaintiff’s owner had failed to appear at counsel’s law office for duly scheduled EUOs”

This case is interesting because a supervisor at a law firm may lay the appropriate foundation to satisfy the Fogel personal knowledge requirement , even though the supervisor had nothing to do with the scheduling and non appearances at the attempted EUOs. Again, a well drafted and copiously detailed affidavit, similar to that of a mailing affidavit, is a prerequisite to utilizing this method to demonstrate the Fogel personal knowledge requirement.