Clennon applied

Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51653(U)(App. Term 2d Dept. 2015)

“With respect to plaintiff’s contention that defendant failed to demonstrate justification for its EUO requests, the Appellate Division, Second Department, has held that where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an from the assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the issued a timely denial of the claims arising from the treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ). Moreover, a review of the record in Interboro Ins. Co. v Clennon (113 AD3d 596) reveals that in that case, the provider argued, as does plaintiff herein, that the insurer’s motion should have been denied pursuant to CPLR 3212 (f), as the provider had not received discovery regarding the reasonableness of defendant’s EUO requests, and that, even if there had been a failure to appear for two duly scheduled EUOs, the insurer had to show that the failure to appear constituted willful obstruction of the insurer’s investigation. In finding for the insurer, the Appellate Division, Second [*2]Department, stated the following:

“the failed to establish that summary judgment was premature in light of outstanding discovery. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant’ (Cajas-Romero v Ward, 106 AD3d 850, 852 ; see CPLR 3212 ). Here, in support of their contention that the motion was premature, the did not establish what information they hoped to discover that would demonstrate the existence of a triable issue of fact” (113 AD3d at 597).

Similarly, in the instant case, plaintiff did not establish what information it hoped to discover that would demonstrate the existence of a triable issue of fact (cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 ).”

The Court notes a distinction between Clennon and Jaga.  There really is no distinction.  Jaga was clarified in Sance and Longevity, where the First Department held that Unitrin is constrained by when the EUO letters are sent relating to the receipt of the billing.

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