Essential Acupuncture Servs., P.C. v Ameriprise Auto & Home Ins., 2012 NY Slip Op 52404(U)(App. Term 2d Dept. 2012)
“Since defendant failed to establish that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant failed to demonstrate that the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8) had been tolled. As a result, defendant failed to establish that its denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s owner to appear for the EUOs (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 ).”
What is noteworthy is that the Court probably did not have to reach the preclusion issue because if the EUO letters were untimely, then the defense under a (1) Westchester/Lincoln; (2) Unitrin/Bayshore; or (3)NYP/Countrywide analysis would fail.