Must a carrier demonstrate that a deponent willfully failed to attend EUO's in order to substantiate this defense?

When dealing with no-fault insurance claims in New York, particularly in Nassau and Suffolk counties, understanding the complexities of Examination Under Oath (EUO) requirements can mean the difference between successful claim recovery and denial. For healthcare providers, medical professionals, and accident victims across Long Island and New York City, the legal standards surrounding EUO compliance continue to evolve through court decisions that shape how insurance carriers must handle these critical examinations.

Understanding EUO Requirements in New York No-Fault Law

The Examination Under Oath (EUO) serves as a cornerstone of New York’s no-fault insurance system, allowing carriers to investigate claims thoroughly while protecting against fraud. However, recent court decisions have created significant questions about what insurance companies must prove when claiming that a claimant failed to cooperate with EUO requirements.

There has been a lot of activity on the Supreme Court front, in the realm of declaratory judgment actions, as to whether a insurance carrier must prove prima facie that the deponent willfully failed to attend an EUO (or IME) . In the most recent case that came down Progressive Northeastern Ins. Co. v Arguelles Med. P.C., 2009 NY Slip Op 32353(U)(Sup. Ct. NY Co. 2009)(Friedman, J.), a declaration of non coverage was denied due to the failure of the carrier to make a threshold showing that the witness willfully failed to attend the EUOs. See, Unitrin Advantage Ins. Co. v. Carothers, 17 Misc.3d 1121 (Sup. Ct. NY Co. 2008)(Diamond, J.). See also, Brentwood Pain & Rehabilitation Services, P.C. v. Progressive Ins. Co. 2009 NY Slip Op 31181(u)(Sup. Ct. NY Co. 2009).

The Thrasher Standard and Willful Disvowal

For Nassau and Suffolk County practitioners, understanding the distinction between different types of non-cooperation defenses is crucial. The legal landscape varies depending on whether the alleged violation relates to a condition precedent versus other policy requirements.

Certain cases not involving violations of the condition precedent portion of the no-fault endorsement hold that the carrier must meet the Thrasher “willful disvowal” standard in order to substantiate a no-fault non-cooperation defense. Simmons v. State Farm, 16 AD3d 1117 (4th Dept. 2005); Park v. Long Island Ins. Co., 13 AD3d 506 (2d Dept. 2004). But see, Utica Mut. Ins. Co. v. Timms, 293 AD2d 669, 670 (2d Dept. 2002).

It follows, however, that the Thrasher standard would not involve the failure to comply with a portion of the policy that is delineated as a condition precedent to coverage. See e.g., Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 (2d Dept. 2006); Adams v. Allstate Ins. Co., 210 A.D.2d 319 (2d Dept. 1994); Inwood Hill Med., P.C. v General Assurance Co. , 10 Misc 3d 18 (App Term. 1st Dept 2005).

Practical Implications for Long Island Healthcare Providers

Healthcare providers in Nassau and Suffolk counties frequently encounter EUO requests as part of routine no-fault claim processing. Understanding when these requests constitute valid condition precedents versus standard policy requirements can significantly impact claim outcomes and reimbursement timelines.

Thus, as to the EUO non-appearance defense, the failure to attend two properly scheduled EUO’s should support a prima facie defense against the compensability of no-fault benefits. A.B. Medical Services, PLLC v. American Transit Ins. Co., 2009 N.Y. Slip Op. 52067(U)(App. Term 2d Dept. 2009). A showing of willfulness is not required, and would would only apply if the deponent attended the EUO but was obstructing the examination. Park, supra. A review of the law also discloses that a finding of reasonableness will generally be inferred from the proximity of the date of the EUO to the scheduling date and the location of the EUO in relation to where the Claimant resides or his attorney has an office. Great Wall Acupuncture v. New York Cen. Mut. Ins. Co., 22 Misc.3d 136(A)(App. Term 2d Dept. 2009); Eagle Surgical Supply, Inc., v. Progressive Cas. Ins. Co., 21 Misc.3d 49 (App. Term 2d Dept. 2009)

Challenging Unreasonable EUO Requests

For clients throughout the New York metropolitan area, knowing how to effectively challenge improper EUO scheduling can preserve claim rights and prevent unfair denials. The burden of proof and standards of reasonableness play crucial roles in these challenges.

In order to oppose an EUO no-show defense, the burden is on the Plaintiff to demonstrate a lack of reasonableness. Factors to consider would be whether the EUO was at an odd time, or whether the EUO was scheduled to be held at a location distant from the deponent or his attorney’s office. Other factors unique to a case may also militate against a finding of reasonableness. The proof of lack of reasonableness will either rebut the presumption of reasonableness raising an issue of fact or prima facie demonstrate the lack of reasonableness of the EUO request. See, id.

Geographic Considerations for NYC and Long Island Cases

The geographic scope of the New York metropolitan area presents unique challenges for EUO scheduling. What constitutes a “reasonable” location varies significantly between Manhattan-based cases and those involving Long Island residents. Courts typically consider travel distance, public transportation access, and the location of legal representation when evaluating reasonableness claims.

Accordingly, the decision of Justice Friedman and others who believe that a carrier must demonstrate that the deponent willfully failed to appear for two properly scheduled EUOs is probably incorrect.

See Dave Gottlieb’s post at NFP on this for his insight.

Strategic Considerations for No-Fault Practitioners

The evolving jurisprudence around EUO requirements demands strategic thinking from both plaintiffs and defense attorneys. Understanding the distinction between condition precedent violations and general policy breaches can inform case strategy and settlement negotiations.

For healthcare providers operating in the competitive New York market, maintaining compliance with legitimate EUO requests while protecting against overreach requires careful legal guidance. The stakes are particularly high given the volume of no-fault claims processed throughout Nassau, Suffolk, Queens, Kings, and New York counties.

Best Practices for EUO Compliance

Successful no-fault practice requires proactive management of EUO obligations. This includes maintaining clear communication channels with insurance carriers, documenting all correspondence regarding scheduling conflicts, and preserving evidence of any unreasonable demands or timing conflicts.

Frequently Asked Questions About EUO Requirements

What happens if I miss a scheduled EUO?

Missing a properly scheduled EUO can result in denial of no-fault benefits. However, if the EUO was scheduled unreasonably or without proper notice, you may have grounds to challenge the denial. The key is demonstrating that the scheduling was unreasonable under the circumstances.

How much notice must an insurance carrier provide for an EUO?

While New York law doesn’t specify exact timing requirements, courts generally require “reasonable” notice. This typically means sufficient time to arrange schedules and travel, considering the location and your attorney’s availability. What constitutes reasonable notice can vary based on specific circumstances.

Can I reschedule an EUO if I have a conflict?

Yes, you generally have the right to request reasonable rescheduling for legitimate conflicts. However, repeated requests without valid reasons may be viewed as non-cooperation. It’s essential to communicate promptly and provide documentation for scheduling conflicts when possible.

What if the EUO location is too far from my home or office?

Location reasonableness is a key factor courts consider. If the proposed EUO location creates an undue burden relative to your residence or your attorney’s office location, you may have grounds to request a more convenient venue or challenge a subsequent denial based on non-attendance.

Do I need an attorney present during an EUO?

While not required, having experienced legal representation during an EUO is strongly recommended. An attorney can protect your rights, object to improper questions, and ensure the examination stays within appropriate bounds under New York no-fault law.

Protecting Your Rights in No-Fault Claims

The complexities of EUO compliance in New York’s no-fault system require experienced legal guidance to navigate successfully. Whether you’re a healthcare provider seeking reimbursement or an accident victim pursuing benefits, understanding your rights and obligations under current law is essential.

For immediate assistance with your no-fault insurance matter, including EUO compliance issues, scheduling conflicts, or benefit denials, contact our experienced legal team. We understand the unique challenges facing clients throughout Long Island and New York City, and we’re committed to protecting your rights while maximizing your recovery.

Call 516-750-0595 today to discuss your case with an experienced no-fault attorney who understands the evolving landscape of EUO requirements and can help you navigate these complex legal waters effectively.

Related Articles

• EUO validity requirements and appellate court analysis
• Second Department ruling on EUO personal knowledge standards
• EUO objections and procedural requirements
• Consequences of failing to respond to EUO demands
• New York No-Fault Insurance Law

---

Legal Update (February 2026): Since this 2009 post, New York courts have continued to refine the standards for proving non-cooperation in EUO matters, with subsequent appellate decisions potentially modifying the prima facie burden requirements discussed in Progressive Northeastern. Additionally, regulatory amendments and procedural changes in no-fault insurance regulations may have affected EUO notice requirements and substantiation standards. Practitioners should verify current court precedents and regulatory provisions regarding carrier burden of proof in EUO non-cooperation defenses.