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Appellate Division upholds summary judgment in favor of insurer despite affidavit from counsel stating that his client intended on appearing for an EUO

Nationwide Affinity Insurance Company of America v. Iesha George, et. al.

Index No. 605673/2016

Supreme Court: New York – Nassau County

In an action involving the noticing of claimants involved in a suspect motor vehicle incident to appear for an examination under oath (EUO), Allan S. Hollander and Brian E. Kaufman persuaded the Supreme Court, Nassau County, to grant Nationwide summary judgment. Nationwide commenced the action seeking a declaration that it was under no obligation to reimburse the healthcare provider defendants for services rendered based upon the failure of their assignors to appear for an EUO. The great challenge of this case was Allan and Brian overcoming an affidavit submitted by counsel for the assignors, which stated he was present at the EUO and his clients also intended to appear.

The case was then appealed to the Appellate Division, Second Department who subsequently affirmed the decision of the Supreme Court. In its holding, the Appellate Division, Second Department held that Nationwide established, that the letters scheduling the EUOs were timely and properly mailed by submitting an affidavit from an individual who had personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed, and that the medical provider defendants’ mere denial of receipt was insufficient to rebut a presumption that the letters were received.

The Appellate Division further held, that Nationwide also established, that the individual defendants failed to appear at two scheduled EUOs by submitting the affidavits of individuals with personal knowledge that the individual defendants failed to appear at the location of the EUOs on the dates they were scheduled, and that Nationwide issued a timely and proper denial of the claims by demonstrating that the denials were sent within 30 days of the second scheduled EUO, through affidavits from individuals who had personal knowledge as to the standard office practice for ensuring that denials are properly addressed and mailed.

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