No-show based upheld despite objection – with a caveat

First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593(U)(App. Term 2d Dept. 2017)

(1) “At the outset we note that plaintiff failed to establish that it had mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the objection letters that it attached to its opposition papers (see generally Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists [*2]2011] [where a plaintiff fails to object to an EUO request at the time it is requested, the plaintiff’s objections to the request may not be raised for the first time during litigation]).”

(2)  “In any event, the no-fault regulations provide that an insurer may request that a provider submit to an EUO as may reasonably be required (see 11 NYCRR 65-1.1 [b]) and, here, defendant demonstrated that the requests for the EUOs at issue pertain to claims which it had received after the January 11, 2013 EUO had been conducted.”

Clearly, we have a situation where the EUO of the EIP occurred and then the facility was then brought in for an EUO.  Objection letters were generated but not mailed.  Would it have mattered if the letters were nailed?  I see the words “in any event” and that could mean even if it was mailed, it would not be sufficient.  I am unsure, however, if that is the case.

There has been a dearth of cases on this issue viz. can an EUO be validly blocked when an objection letter as to the EUO is mailed to the carrier.  Again, we are waiting for the case where the objections letters are mailed and the Court reaches this precise issue.  Stay tuned.