July 31, 2017

Pierre J. Renelique MD, P.C. v Travelers Ins. Co. (2017 NY Slip Op 51047(U))

Headnote

The court considered the fact that in a no-fault benefits case, Plaintiff timely submitted the bills at issue to Defendant, and that the burden shifted to the Defendant to show that its Examination Under Oath (EUO) requests were timely mailed and that the assignor failed to appear for the EUOs. Defendant produced a witness who testified regarding their office procedures when scheduling EUOs and when an assignor failed to appear for an EUO. The court found that the witness did not have personal knowledge of the assignor's failures to appear based solely on her review of the file, and therefore, judgment was awarded in favor of Plaintiff for $785.12 plus interest, attorneys' fees, and statutory costs and disbursements. The main issue decided was whether the Defendant was able to prove that its EUO requests were timely mailed and that the assignor failed to appear for the EUOs. The holding of the case was that the court did not find that the Defendant's witness had personal knowledge of the assignor's failures to appear based solely on her review of the file, and therefore, judgment was awarded in favor of Plaintiff.

Reported in New York Official Reports at Pierre J. Renelique MD, P.C. v Travelers Ins. Co. (2017 NY Slip Op 51047(U))

Pierre J. Renelique MD, P.C. v Travelers Ins. Co. (2017 NY Slip Op 51047(U)) [*1]

Pierre J. Renelique MD, P.C. v Travelers Ins. Co.

2017 NY Slip Op 51047(U) [56 Misc 3d 1216(A)]

Decided on July 31, 2017

Civil Court Of The City Of New York, Kings County

Rosado, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 31, 2017

Civil Court of the City of New York, Kings County

Pierre J. Renelique MD, P.C. assignee of Brunmaire Yanik, Plaintiff,
against
Travelers Insurance Company, Defendant.

033085/2014

Attorney for Plaintiff:
Mikhail Kopelevich Esq. from Kopelevich & Feldsherova, P.C.,

Attorney for Defendant Heather M. Brown-Osen:
Duane Frankson from the Law Office of Aloy O Ibuzor

Mary V. Rosado, J.

A bench trial was commenced and completed on July 7, 2017. In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that Plaintiff established its prima facie case by timely submitting the bills at issue to Defendant. The burden now shifts to Defendant to show timely mailing of the notices of Examinations Under Oath (hereinafter “EUO”) and the failure of the assignor to attend the scheduled EUOs.

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 [*2]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).

Therefore, based upon the foregoing, judgment is awarded in favor of Plaintiff for $785.12 plus statutory interest, attorneys’ fees as provided by the statute and the statutory costs and disbursements of this action.

This constitutes the Decision and Order of the Court.

Dated: July 31, 2017

Kings, New York

Mary V. Rosado, J.C.C.