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Appellate Term reverses lower court and upholds denial issued after three missed EUOs

»Chi P&L Acupuncture a/a/o Pia Daniels, James Stokely v. Nationwide Ins. Co.

Lower Court Index No. 746744/16

Appellate Term of the Supreme Court – Second Judicial Department

Appellate Term Docket # 2018-2597 KC

In this action by a provider to recover assigned first-party no-fault benefits, Nationwide moved for summary judgment dismissing the complaint on the ground that it had timely denied the claims based upon plaintiff’s failure to appear at three (3) duly scheduled examinations under oath (EUOs). The Civil Court denied Nationwide’s motion and Nationwide appealed to the Appellate Term.

The Appellate Term over turned the lower court’s determination and held that the proof submitted by Nationwide in support of its motion was sufficient to demonstrate that Nationwide’s attorney was present at the time for which the EUOs were scheduled to be held, and that plaintiff had failed to appear for the EUOs. What is further significant about this ruling is that the EUOs in this action were noticed three (3) times, and objected to on each occasion. Thus, the Appellate Term, Second Department has set forth precedent that if you can show the Court why you noticed the EUO for additional dates you can still be successful on summary judgment.

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