RAYNARD LITCHMORE v. Country-Wide Insurance Company, Defendant(s) (2026)

Following the virtual trial in this matter held before me on June 17, 2026, I hereby find the following:

The prior order in this matter dated October 16, 2025 (Epstein, J.) granted Defendant's prior motion for summary judgment to the extent that Defendant has established the timely and proper mailing of its NF-10 denial of claim form and granted Plaintiff's prior cross-motion for summary judgment to the extent that Plaintiff established the timely and proper mailing of the subject bill. That order also found a triable issue of fact as to the timely and proper mailing of Defendant's examination under oath ("EUO") requests but did not address the element of Defendant's defense as to whether Plaintiff's assignor failed to appear for the EUOs. For the reasons stated on the record, the Court held that the prior order did not relieve Defendant of its burden at trial of demonstrating the assignor's alleged nonappearances because the order was silent in that regard.

At the time of trial, Plaintiff rested in light of its prima facie burden having been established due to the prior order in this matter, and Defendant presented the witness testimony of its employee as to her handling of the subject EUO requests.

The Court finds that Defendant witness' testimony was sufficient to establish the timely and proper mailing of the EUO letters, but was insufficient to establish, in admissible form and based upon personal knowledge, that the assignor failed to appear for the EUOs. Defendant's argument that based upon witness' testimony of receipt of the statement on the record renders it a "memorandum of record" an exception to the Deng holding was rejected. Charles Deng Acupuncture, P.C. v. Titan Ins. Co., 74 Misc 3d 137(A) (App. Term, 2d Dep't, 2022). Deng's dicta did not establish elements that would convert an otherwise inadmissible statement on the record pursuant to the hearsay rule to an admissible "memorandum of record". Thus, Defendant's argument was not compelling to invoke this stated exception in dicta. Nevertheless, over Plaintiff's objection, the statement on the record was admitted not for the truth contained therein, which would absolutely be hearsay, but rather based upon the witness' testimony that she physically received the statement on the record. This Court analogized its limited admissibility for the highly constricted purpose as thus: a witness testifies to having received a bag with contents contained therein, the court admits the bag as the bag that was received by the witness, but not admitted for the truth of the contents contained within the bag for evidentiary purposes, which must be proven independently, separately and apart. In this instant case, the physical corpus or tangible thing of the statement on the record (the bag so to speak) is admitted. Whereas the truthfulness of the statements contained within the four corners of the statement on the record must be proven independently, which Defendant failed to so do. Defendant's alternative argument that upon admitting the physical tangible statement on the record, the witness' testimony that as upon EUO no show, the usual customary business practice which she followed was to send out another EUO request, which she did, was also rejected. This Court opined that Defendant's argument fails to account that although that testimony may be considered for the first missed EUO, it would not extend to the second EUO no show. The EUO no show defense requires two missed EUOs. Accordingly, Defendant failed to establish its defense of EUO no show.

In sum, not having proffered admissible evidence in the form of testimony by one with personal knowledge of the alleged EUO nonappearances or otherwise, Defendant did not meet its burden of establishing all required elements of its defense.

For the foregoing reasons, Judgment is directed in favor of Plaintiff in the amount of $670.00, together with statutory interest commencing from the filing of this litigation, statutory attorney's fees, costs, and disbursements.

This constitutes the Decision and Order of the Court.

Dated: June 17, 2026

Brooklyn, New York

Hon. Sandra Elena Roper, J.C.C.

Sandra Elena Roper, J.