When was the last time the Appellate Division cited Westchester v. Lincoln? This Court seeks citing dinosaurs, which have been extinct for awhile now.
Clove Med. Supply, Inc. v Ameriprise Ins. Co., 2014 NY Slip Op 50357(U)(App. Term 2d Dept. 2014)
In support of its motion, defendant was required, but failed, to demonstrate that its initial and follow-up requests for EUOs of plaintiff had been timely mailed (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]), as the record is devoid of any reference to the dates on which defendant had received plaintiff’s claim forms. Consequently, defendant failed to demonstrate that it had tolled its time to pay or deny the claims, and, thus, that it is not precluded from raising its proffered defense that plaintiff had failed to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). In view of the foregoing, the Civil Court properly denied defendant’s motion”
4 Responses
“When was the last time the Appellate Division cited Westchester v. Lincoln?”
Less than 2 months ago, on January 29, 2014 in Westchester Med. Ctr. v. Government Empls. Ins. Co., 113 A.D.3d 842 (2d Dep’t, 2014).
I need to rephrase. For the proposition that the failure to attend an EUO precludes the failure to comply defense. In the above case cited, Lincoln General was not cited for that proposition.
Of course they haven’t cited to Westchester v. Lincoln for that proposition, since they haven’t issued an order dealing with EUO no-show preclusion since that case was decided.
Not true. The issue occupied most of Appellant’s brief in Clennon. Let’s see what happens in 2 weeks when that EUO-no-show case from Suffolk is decided. It might make Civil Kings a little more bearable.