NYSSIU Legal Update 2019-2020 Edition

 LEGAL UPDATE

I have been privileged since incorporating the New York State Chapter of Special Investigation Units (NYSSIU) in 1997 to serve as its Counsel.  Many times I have prepared and presented the NYSSIU Legal Update to members and guests at NYSSIU meetings.  Some of those updates even made it to NYSSIU's website.  

On May 6, 2020, my son Ryan Mura prepared and virtually presented the 2019-2020 edition of the NYSSIU Legal Update.  That edition digests eight no-fault, six property and two criminal law case decisions, as well as providing updates on New York legislative and regulatory developments affecting New York property and casualty insurers. 

You can read that Legal Update here.  Case decisions are hyperlinked within.  Questions can/should be directed to Ryan.

An EUO No-Show By Any Other Name...

NO-FAULT – EUO NO-SHOW 

Active Care Med. Supply Corp. v. ELRAC Inc.
(NYC Civ. Ct., Kings Co., decided 11/17/2017)

How many assignor EUO no-shows does it take to change a light bulb?  I mean, to deny an assignee's no-fault claim?  Two, right?  Wrong.  Not when the first no-show is not a "failure to appear".

ELRAC's defense counsel scheduled an EUO of the provider's assignor.  Counsel was informed that the assignor would be unable to appear for the first scheduled EUO, so counsel rescheduled the EUO to a second date.  After the assignor no-showed on the second scheduled EUO date, ELRAC denied no-fault benefits, and the assignee sued.  After a bench trial the court found and entered judgment in favor of the assignee plaintiff, holding with respect to ELRAC's EUO no-show defense:

[G]iven that [ELRAC's defense counsel] testified that he was informed that the assignor would be unable to appear for the first scheduled examination under oath [on April 14, 2011], the examination under oath should have been rescheduled. As such, the assignor's inability to appear on April 14, 2011 does not constitute a "failure to appear." Plaintiff's "no show" on May 5, 2011 constituted his first "failure to appear," and Defendant should have followed up with a second request for an examination under oath as required pursuant to 11 NYCRR 65-3.6.

Make sense?

No-Fault Insurer Establishes EUO No-Show Defense on Summary Judgment Motion

NO-FAULT – SUMMARY JUDGMENT SHOWING OF EUO NO-SHOW DEFENSE – DISCOVERY ON REASONABLE OF EUO REQUESTS  

Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co.
(App. Term, 2nd Dept., decided 11/12/2015)

What must a no-fault insurer demonstrate to establish its prima facie case when moving for summary judgment on an assignor EUO no-show defense?  Three things:

(1) that it twice duly demanded an EUO from the provider's assignor; 

(2) that the assignor twice failed to appear; and

(3) that the insurer issued a timely denial of the claims arising from the provider's treatment of the assignor. 

The provider in this case argued that defendant State Farm was not entitled to summary judgment because it had not responded to plaintiff's discovery demands on the reasonableness of State Farm's EUO requests.  The Appellate Term disagreed:

A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or [that] the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (Cajas-Romero v Ward, 106 AD3d 850, 852 [2013]; see CPLR 3212 [f]). Here, in support of their contention that the [insurer's] motion was premature, the [providers] did not establish what information they hoped to discover that would demonstrate the existence of a triable issue of fact" (113 AD3d at 597).  

Similarly, in the instant case, plaintiff did not establish what information it hoped to discover that would demonstrate the existence of a triable issue of fact (cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [2015]).