Infinity Health Prods., Ltd. v Progressive Ins. Co., 2010 NY Slip Op 51334(U)(App. Term 2d Dept. 2010)
“To raise a triable issue of fact based on the assignor’s failure to appear at scheduled EUOs, defendant was required to demonstrate that its initial and follow-up requests for verification were timely (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]) and establish, by an affidavit of one with personal knowledge, that the assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant failed to establish that the EUO scheduling letters were timely mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to demonstrate that the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8) was tolled. As a result, defendant failed to establish that its denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an EUO.”
I previously published a blog entry where I discussed the EUO time frames in great detail. At least, the court seems to finally be consistent here on what is necessary to prove the EUO no-show defense.
And then there is the dissent, with which I completely agree.
