Key Takeaway
New York court rules EUO scheduling was untimely and rescheduling prevents valid no-show claims in no-fault insurance case, establishing key precedent for providers.
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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 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.”
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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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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Nov 28, 2015Was this article helpful?
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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