There have been an uptick in EUO and IME no-show appeals lately. The next few posts you could say are dedicated to these policy violation cases.
This one is from the Appellate Term, First Dept:
Marina v Praetorian Ins. Co., 2010 NY Slip Op 51292(U)(App. Term 1st Dept. 2010)
“[d]efendant established prima facie that it mailed the notices of the independent medical examinations (IMEs) to the assignors and that the assignors failed to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. v General Assurance Co., 10 Misc 3d 18, 20 [2005]).”
I remember writing the brief in Fogel, as a younger attorney. I never got credit for it, but there is a story behind it, which I am not going to publish here.
It also is nice to see Inwood v. General Assurance cited. That was a huge case when it was decided 5 years ago. It set in motion the Appellate Division’s holding in Stephen Fogel. While I am on the topic of no-fault history, those of you out there who complain about what the Appellate Term, Second Department has become, probably long for a return to the “pre-fogel” and “contemporary” days.
2 Responses
I didnt notice it until some late night perusing, but, according to this case, the First Dept will allow a challenge to the reasonableness of a verification request.
The First Department, even going back to Inwood, held that the burden to show lack of reasonableness is on the objector of the verification. Certain older Second Department cases, I believe, put the burden on the proponent of the summary judgment motion, yet never found that IME or EUO to be unreasonable. The question coming up is what is necessary to challenge an IME or EUO request. This issue is in its infancy.