Mutual rescheduling and its risks

Clear Water Psychological Servs., P.C. v Mid-Century Ins. Co., 2022 NY Slip Op 50621(U)(App. Term 2d Dept. 2022)

In its motion, defendant set forth three scheduled EUO dates: June 8, 2018, June 25, 2018 and July 10, 2018. Defendant’s motion papers assert that the June 8, 2018 EUO was mutually rescheduled, which, if such rescheduling “occur prior to the date of the scheduled EUO, does not constitute a failure to appear” (Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140, 2013 NY Slip Op 52005, *1 ). However, defendant failed to demonstrate that fact as a matter of law (cf. Sovereign Acupuncture, P.C. v American Commerce Ins. Co., 56 Misc 3d 132, 2017 NY Slip Op 50922 ). Indeed, defendant’s denial of claim forms list all three dates as failures to appear. As defendant denied the claims on July 27, 2018, more than 30 days after June 25, 2018, the second scheduled EUO date (see 11 NYCRR 65-3.8 ), and as defendant did not establish that the first EUO had been mutually rescheduled, an issue of fact remains as to whether defendant’s denials were timely and, thus, whether defendant is precluded from interposing its defense that plaintiff’s assignor failed to appear for duly scheduled EUOs

I never that this whole mutual re-scheduling line of cases could be used as a sword to deem disclaimers untimely. So interesting.

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