An unobjected to EUO notice precludes a later challenge to the propriety of the notice

Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 50950(U)(Civ. Ct. Kings Co 2010)

“In support of its second contention, Plaintiff argues that despite the fact that the accident occurred in Kings County and the Plaintiff resides in Kings County, Defendant scheduled the EUOs to be held at the offices of its counsel located in Westchester County. As such, Plaintiff claims that the EUO notices were defective and unreasonable because it failed to provide that Plaintiff would be paid for her time and travel expenses.

Here, it is undisputed that Plaintiff did not respond to the Verification Request. Plaintiff asserts that it was not required to respond due to the fact that Defendant’s request was defective and unreasonable. The Court disagrees. There is no provision of the No Fault Regulations which allow a claimant or insurance company to ignore a Verification Request or response. In fact, there is ample case law which provides that neither party may ignore communications from the other without risking its chance to prevail in the matter (see, Media Neurology, P.C. v. Countrywide Ins. Co., 21 Misc 3d 1101(A); and Westchester County Medical Center v. NY Central Mutual Fire Ins. Co., 262 AD2d 553). Even when a claimant believes it need not comply with a verification request, the claimant still has a duty to communicate with the insurer regarding the request (see, Dilon Medical Supply Corp. v. Travelers Insurance Co., 7 Misc 3d 927). It is well established that the purpose of the No Fault statute is to ensure prompt resolution of claims by accident victims. The parties’ obligations are centered on good faith and common sense. Any questions concerning a communication should be addressed by further communication, not inaction.(see, Dilon Medical Supply Corp. v. Travelers Insurance Co, supra).

If a Plaintiff deems a Verification Request to be defective and or unreasonable, it is incumbent on that Plaintiff to convey that information to the Defendant and to state the reasons thereof, thereby giving the Defendant the opportunity to respond accordingly. The Defendant should not be put in a position to second guess the reason or reasons why the Plaintiff has failed to respond to the request. In this case, the Plaintiff could have informed the Defendant that given the fact that the Plaintiff resided in Brooklyn, the scheduled location for the EUO was inconvenient, or in the alternative, Plaintiff could have requested reimbursement for time and travel expenses, thereby preserving its defenses concerning the EUO notices (see, Presbyterian v Maryland, 90 NY2d 274). By failing to respond to Defendant’s Verification Request, Plaintiff undermined the purpose of the No Fault Statute, which is to ensure the prompt resolution of claims.

The Court finds that by failing to respond to Defendant’s Verification Request, Plaintiff waived its defense and is therefore estopped from asserting that the EUO notices were defective and unreasonable. Defendant should not be penalized for Plaintiff’s inaction. Accordingly, the Court [*3]need not address Plaintiff’s arguments concerning the sufficiency of Defendant’s EUO requests (see Allstate Social Work and Psychological Svcs. v. Utica Mutual Insurance Co., 22 Misc 3d 723).”

The bolded passages tell the story about this case.  While the better practice is to hold EUO’s in the county where the deponent resides or where the treatment is occurring, the court correctly found that a venue defect must be met with a prompt objection or forever be waived.

This should be analogized to CPLR 3122(a), where the courts have interpreted the statute to mean that absent a timely objection to the deposition notice, most objections, save those that allege the deposition is palpably improper, are waived.