In this action to recover No Fault benefits, the Defendant moves to dismiss Plaintiff's cause of action claiming that the assignor failed to appear for two (2) scheduled Examination Under Oath (EUO).

Defendant contends that it received Plaintiff's bill on November 17, 2008 and mailed a Verification Request for an EUO to Plaintiff on December 1, 2008, nine (9) days from receipt of the bill. Defendant claims that it scheduled 2 EUOs and Plaintiff's assignor failed to appear for both EUOs.

In opposition, Plaintiff makes two arguments: (1) That the Verification Request was untimely and (2) That the EUO notices were defective on its face and unreasonable. In support of its first contention, Plaintiff argues that the Verification Request was sent 19 days after the bill was mailed.

Under the No Fault Regulations, it is clear that an insurance company must send a Verification Request to the claimant within 10 business days from the date of the receipt of the claim (11 NYCRR §65-3.5(a)). If the claimant does not respond within 30 calendar days, the insurance company must send a follow up request for verification within 10 days of the claimant's failure to respond (11 NYCRR §65-3.6(b)).

Plaintiff argues that the affidavits submitted by Defendant are not the type of documentary [*2]evidence needed to dispose of Plaintiff's claim pursuant to CPLR §3211(a)(1). After review, the Court finds that the affidavits submitted by Defendant are sufficient to establish that the Verification Request and follow up request were properly and timely mailed. It is enough that the Defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the Defendant's standard office practices or procedures designed to ensure that items were properly addressed and mailed (see, Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679).

In support of its second contention, Plaintiff argues that despite the fact that the accident occurred in Kings County and the Plaintiff resides in Kings County, Defendant scheduled the EUOs to be held at the offices of its counsel located in Westchester County. As such, Plaintiff claims that the EUO notices were defective and unreasonable because it failed to provide that Plaintiff would be paid for her time and travel expenses.

Here, it is undisputed that Plaintiff did not respond to the Verification Request. Plaintiff asserts that it was not required to respond due to the fact that Defendant's request was defective and unreasonable. The Court disagrees. There is no provision of the No Fault Regulations which allow a claimant or insurance company to ignore a Verification Request or response. In fact, there is ample case law which provides that neither party may ignore communications from the other without risking its chance to prevail in the matter (see, Media Neurology, P.C. v. Countrywide Ins. Co., 21 Misc 3d 1101(A); and Westchester County Medical Center v. NY Central Mutual Fire Ins. Co., 262 AD2d 553). Even when a claimant believes it need not comply with a verification request, the claimant still has a duty to communicate with the insurer regarding the request (see, Dilon Medical Supply Corp. v. Travelers Insurance Co., 7 Misc 3d 927). It is well established that the purpose of the No Fault statute is to ensure prompt resolution of claims by accident victims. The parties' obligations are centered on good faith and common sense. Any questions concerning a communication should be addressed by further communication, not inaction.(see, Dilon Medical Supply Corp. v. Travelers Insurance Co, supra).

If a Plaintiff deems a Verification Request to be defective and or unreasonable, it is incumbent on that Plaintiff to convey that information to the Defendant and to state the reasons thereof, thereby giving the Defendant the opportunity to respond accordingly. The Defendant should not be put in a position to second guess the reason or reasons why the Plaintiff has failed to respond to the request. In this case, the Plaintiff could have informed the Defendant that given the fact that the Plaintiff resided in Brooklyn, the scheduled location for the EUO was inconvenient, or in the alternative, Plaintiff could have requested reimbursement for time and travel expenses, thereby preserving its defenses concerning the EUO notices (see, Presbyterian v Maryland, 90 NY2d 274). By failing to respond to Defendant's Verification Request, Plaintiff undermined the purpose of the No Fault Statute, which is to ensure the prompt resolution of claims.

The Court finds that by failing to respond to Defendant's Verification Request, Plaintiff waived its defense and is therefore estopped from asserting that the EUO notices were defective and unreasonable. Defendant should not be penalized for Plaintiff's inaction. Accordingly, the Court [*3]need not address Plaintiff's arguments concerning the sufficiency of Defendant's EUO requests (see Allstate Social Work and Psychological Svcs. v. Utica Mutual Insurance Co., 22 Misc 3d 723).

Based on the above, Defendant's motion to dismiss is granted. Plaintiff's complaint is hereby dismissed.

This constitutes the Decision and Order of the Court.

DATED: MAY 25, 2010_____________________________

SYLVIA G. ASH, J.C.C.