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?