NON-APPEARANCE AT EUO – DEFECTIVE NOTICE

NON-APPEARANCE AT EUO – DEFECTIVE NOTICE

Meridian Psychological Services, P.C., v. Allstate Insurance Company, Slip Copy, 2016 WL 1188893 (Table), 2016 N.Y. Slip Op. 50375(U).  Injured party failed to appear for the EUOs. Following the trial, the Civil Court found that defendant had failed to establish that the EUO scheduling letters had been timely and properly mailed to plaintiff’s assignor.

On appeal, the Court stated:

The testimony of defendant’s witness established that defendant’s counsel’s office had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) letters and follow-up letters scheduling EUOs by both first class and certified mail, return receipt requested, to the address set forth on the NF-2 form signed by plaintiff’s assignor. Although the copies of the letters which had been sent by certified mail had apparently not been delivered to plaintiff’s assignor, this fact, standing alone, does not excuse the assignor’s failure to appear for the duly scheduled EUOs. In any event, the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff’s assignor by first class mail had been insufficient (see MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 127 [A], 2014 NY Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Plaintiff urges us to consider, as an alternative ground for affirmance, its contention that defendant’s proof failed to establish that plaintiff’s assignor had failed to appear for the two duly scheduled EUOs (see Parochial Bus Sys. v Board of Educ. of City of NY, 60 NY2d 539 [1983]). At trial, defendant’s witness testified that, for the second EUO, she checked at 11:30 a.m. to see whether the assignor had appeared and continued to check for another 15 minutes, but plaintiff’s assignor never appeared. However, the letter scheduling the second EUO scheduled the EUO for 11:00, not 11:30.1 As the testimony did not prove that *2 the assignor did not appear at 11:00, defendant failed to establish that plaintiff’s assignor had, in fact, failed to appear for two scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since this issue was argued before the Civil Court, and has been briefed by the parties before us, we address plaintiff’s alternative contention and affirm the judgment on this alternative ground.

Wrong time on the EUO notice doomed the carrier.

 

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