Barakat Med. Care, P.C. v Nationwide Ins. Co., 2015 NY Slip Op 51677(U)(App. Term 2d Dept. 2015)
(1) “In support of its motion, defendant submitted an affidavit from one of its special investigators, which affidavit established that the EUO scheduling letters had been timely sent to plaintiff’s assignor in accordance with defendant’s standard practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also annexed an affidavit from an investigator employed within defendant’s special investigations unit, and stenographic transcripts, to show that the assignor had failed to appear for the duly scheduled EUO”
(2) “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 [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Thus, contrary to the determination of the Civil Court, defendant did not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law.”
The Court has now properly held Clennon to mean that an objective basis is not necessary to demonstrate a prima facie case on an EUO no-show case.
