Quality Health Supply Corp. v Nationwide Ins., 2023 NY Slip Op 02689 (2d Dept. 2023)
“Upon receipt of one or more of the prescribed verification forms used to establish proof of claim . . . an insurer has 15 business days within which to request ‘any additional verification required by the insurer to establish proof of claim'” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317, quoting 11 NYCRR 65-3.5[b]). “At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested” (11 NYCRR 65-3.6[b] [emphasis added]). “The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath [*2]. . . is a material breach of the policy, precluding recovery of the policy proceeds” (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [internal quotation marks omitted]; see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597).
Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by showing that its letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at the scheduled EUOs, that it timely and properly followed up pursuant to 11 NYCRR 65-3.6(b), and that it ultimately issued a timely and proper denial of the claims following the insured’s failure to appear at the last scheduled EUO (see 11 NYCRR 65-3.5[b]; 65-3.6[b]; 65-3.8[a]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 756; Interboro Ins. Co. v Clennon, 113 AD3d at 597). In opposition, the plaintiff failed to raise a triable issue of fact.
What is noteworthy is that this case dealt with whether the failure attend was just that or a mutual rescheduling. Therefore, if the carrier gave the EIP a third or fourth attempt despite there being two (2) no-shows, the ensuing denial would be untimely under Appellate Term methodology.
The Appellate Term’s decision was punitive and unwise. The Appellate Division took the words “at a minimum” and crafted the regulations to suit the result that the industry and the Plaintiff’s bar really wanted.
