HERTZ VEHICLES LLC v. DO (2018)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 17, 2017, which denied plaintiff Hertz Vehicles, LLC's motion for summary judgment on the grounds that it failed to demonstrate that it timely requested examinations under oath (EUO), unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment declaring that Hertz owes no coverage for the no-fault services rendered by defendant Pavlova to defendant claimant Beard.

The affidavit of the Hertz claims handler personally assigned to this claim, as corroborated by the NF–10 denial of claim form (Wausau Bus. Ins. Co. v. 3280 Broadway Realty Co. LLC, 47 A.D.3d 549, 549, 850 N.Y.S.2d 84 [1st Dept. 2008];  see also American Tr. Ins. Co. v. Longevity Med. Supply, Inc., 131 A.D.3d 841, 842, 17 N.Y.S.3d 1 [1st Dept. 2015] ), stated that the date Pavlova's bill was received by the insurer was July 18, 2014.  Hertz therefore established its compliance with 11 NYCRR 65–3.5(b) by generating the first EUO scheduling letter within 15 days of receipt of the provider's bill, and compliance with 11 NYCRR 65–3.6(b), by generating the second EUO scheduling letter less than 10 days after the first nonappearance on August 7, 2014.

Hertz also established proof of mailing because it included an affidavit of service, which was executed by the person who mailed the EUO notices and who attested that each was mailed by regular mail to the address provided on the claimant's claim form, as well as to claimant's attorney, in a “postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York” (see American Tr. Ins. Co. v. Lucas, 111 A.D.3d 423, 424, 974 N.Y.S.2d 388 [1st Dept. 2013];  see also Deluca v. Smith, 146 A.D.3d 732, 732, 45 N.Y.S.3d 469 [1st Dept. 2017] ).

Pavlova's argument, raised for the first time on appeal, that the second EUO nonappearance date was not a non-appearance because the claimant's counsel was present, and because there was a statement on the record which not only acknowledged claimant's nonappearance, but also agreed to reschedule the EUO, is unpreserved and unavailing.