EUO is untimely and not a double no-show

Sovereigh Acupuncture, P.C. v American Commerce Ins. Co., 2017 NY Slip Op 50922(U)(App. Term 2d Dept. 2017)

(1) ” The Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground, among others, that the facts submitted by defendant in support of its cross motion showed that, while defendant declared that plaintiff had failed to appear for scheduled EUOs, defendant had rescheduled each EUO before the date set for each EUO and that, prior to each EUO, defendant was aware that plaintiff was unable to appear.”

(2) “With respect to the claims which defendant admits it received between January 18, 2012 and February 14, 2012, defendant’s moving papers demonstrate that the first EUO scheduling letter sent to plaintiff was mailed more than 30 days after defendant had received these claims. As a result, contrary to defendant’s contention, defendant failed to demonstrate that it had properly denied these claims based upon plaintiff’s failure to appear for [*2]duly scheduled EUOs.”

(3) “defendant’s papers demonstrate that, prior to each scheduled EUO of plaintiff, defendant sent plaintiff a letter rescheduling the EUO of plaintiff for a different date. As a result, the fact that plaintiff did not appear on the date originally set forth in a scheduling letter does not constitute a failure to appear, as defendant had already changed the date for which that EUO had been scheduled. In view of the foregoing, defendant failed to show a triable issue of fact as to whether it had properly denied these claims based upon plaintiff’s failure to appear for two duly scheduled EUOs.”

It appears that Defendant did not challenge Plaintiff’s prima facie case on appeal or in the court below.  Even if a challenge was made, the Court in a rare move found that Defendant’s defense lacked merit as a matter of law.  This seems to only occur when a defendant lays bear their proofs and the Court concludes there is no conceivable way a defense could be found to exist.  In this case, the letters were late and one of the EUO no shows was a reschedule.

Why appeal this?  I am curious.   Is there a point of well-settled no-show law that defendant is trying to push that cannot be discerned?

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