Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 50763(U)(App. Term 2d Dept. 2013)
“Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claim based on plaintiff’s [*2]failure to appear, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff does not claim to have responded in any way to the EUO request, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]), and therefore discovery relevant to the reasonableness of the EUO requests was not necessary to oppose the motion (see CPLR 3212 [f]).”
Oh how many times do I see the arguments: Discovery is outstanding – the motion for summary judgment on the declaratory judgment action alleging EUO no shows should be stayed. While only one Supreme Court Justice out of 20 have bought this argument, it is nice to see the App. Term shut it down.
2 Responses
This decision is a primary example of how skewed the system is in favor of the carriers. The Term can find that not even raising a Mallela issue in an Answer is not fatal to later argue Mallela or that when the carrier has no basis for an EUO does mot matter because the Term is shielding the insurance carriers an their clown SIU and claim adjusters and their lawyers. I am sure once the SIU File and the Claim File is produced it will show nothing and that is what the carriers are scared off. I have not see a carrier ever flaunt its SIU file and say here, you want to see our evidence here you go. All the carriers do is make the BS allegations that we have an SIU file but you cannot see it. Its for our eyes only. The system is extremly biased and one sided. Its fine, plaintiffs just have to keep fighting one case at a time.
I guess the PI lawyers should routinely respond to EUO scheduling letters with a stock “objection: unreasonable” letter as a means of preserving right to discovery on the reasonbleness issue. Nonesense.