PIERRE J. RENELIQUE MD, P.C. v. TRAVELERS INSURANCE COMPANY, 033085/2014, Kings County Civil Court
When an issue involves EUOs, a defendant must prove that its EUO requests were timely mailed and that a plaintiff’s assignor failed to appear for same (see Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc.3d 134[A] [App Term 2d Dept 2011] ). Defendant produced Ms. Marcy Miller, an attorney who currently oversees EUO scheduling and the EUO process in the Law Office of Aloy Ibuzor, the firm representing Defendant in this matter. She testified regarding the Defendant’s office procedures when scheduling EUO’s and the procedure followed when an assignor failed to appear for an EUO. Ms. Miller testified that, when an assignor fails to appear for an EUO, a paralegal notifies the assigned claim representative and the assigned attorney drafts and signs an affirmation attesting that they were the attorney assigned to conduct the EUO, that they were present, and they could not conduct the EUO because the assignor failed to appear. Ms. Marcy testified that, after a review of Defendant’s file and the affirmations from the attorneys assigned to conduct the EUOs, she concluded that the assignor failed to appear. The court credits her testimony regarding the preparation and mailing of the scheduling letters for the April 11, 2013 and May 1, 2013 EUOs and finds that her testimony demonstrates that Defendant timely mailed the EUO requests.
This court, however, does not find that the witness had personal knowledge of the assignor’s failures to appear based solely on her review of the file, the documents therein, and her knowledge regarding the office procedures (see Quality Psychological Servs., P.C. v. Travelers Home & Mar. Ins. Co., 39 Misc. 3 1490[A][2nd Dept 2013]; see also Alrof, Inc. as assignee of Jonathan Rosario v. Safeco National Insurance Company, 39 Misc.3d 130[A][App Term 2nd Dept 2013).
Proof of no shows must be based on personal knowledge