Metro Psychological Servs., P.C. v Mercury Cas. Co., 2015 NY Slip Op 51644(U)(App. Term 1st Dept. 2015)
“While the rescheduling of the initial (April 10, 2012) EUO – by mutual agreement of the parties prior to the scheduled date – did not constitute a failure to appear (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U][App Term, 2d, 11th and 13th Jud Dists][2012]), defendant established that the assignor subsequently failed to appear at the time of the rescheduled EUO (May 2, 2012) and follow-up EUO (May 21, 2012). Contrary to Civil Court’s determination, defendant’s rescheduling of the May 2, 2012 EUO upon the assignor’s failure to appear at that EUO, constituted a follow-up EUO request (see 11 NYCRR 65-3.6[b]).”
One Response
This is a very good decision simply because it puts into action the passive language of DVS that only a rescheduling that occurs PRIOR to the EUO date counts as a rescheduled EUO. Often, Too often, litigants and courts see the word “rescheduled” in an EUO letter and shut you down, even if the second letter went out days after the first failure to appear.