Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 50698(U)(App. Term 2d Dept. 2016)
“We also reject plaintiff’s contention that defendant’s motion was premature in light of outstanding discovery (see CPLR 3212 [f]). Plaintiff did not object to the reasonableness of the EUO requests at the time they were made. Instead, plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation expenses as set forth in the regulations (see 11 NYCRR 65-3.5 [e]). As plaintiff did not object to defendant’s reasons for seeking the EUO during the claims processing stage, plaintiff may not raise such objections in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U];Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, any discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (cf. CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]…”)
I was always right that the issue of demanding a sum of money prior to attendance at EUO was problematic. Admittedly, I was of the belief that a carrier always had one free shot at the provider before objections to the provider’s appearance could be countenanced. I will admit that I am dead wrong. But, I never demand an EUO of a provider unless I had damned good reasons to seek it.
