Lotus Acupuncture v. State Farm Mut. Auto. Ins.
Judge James d'Auguste
Insurer State Farm moved to reargue a prior motion supporting its application by submitting decisions by courts of coordinate jurisdiction deciding the subject issue contrary to this court's determination. Insurer previously sent an initial and follow-up request for an examination under oath (EUO) that provider Lotus did not comply with. The issue was if State Farm's follow-up request was timely. The court interpreted two regulations11 NYCRR 65-3.6 and 11 NYCRR 65-3.8as measuring the accrual date for sending follow-up requests from the no-show EUO appearance. The court received a correspondence from the general counsel for insurance with an opinion letter from the Superintendent of the New York State Department of Financial Services. The court found the superintendent's opinion supported the court's original conclusion that a follow-up EUO notice must be sent within 10 calendar days of the missed EUO. Thus, the court granted State Farm's motion for reargument as the court considered additional input from the Department of Financial Services. However, upon reargument, the court adhered to its original determination finding that as State Farm's follow-up request was untimely, Lotus was properly granted summary judgment.