Why Trust This Analysis
This article is part of our ongoing procedural issues coverage, with 201 published articles analyzing procedural issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
When insurance companies defend against no-fault claims by arguing that patients failed to appear for examinations under oath (EUOs), they often face strategic decisions about which legal motions to file. A 2010 Civil Court decision in Brooklyn clarified important limitations on using certain pre-answer motions in these cases.
The case involved an acupuncture practice suing State Farm for unpaid no-fault benefits, with the insurer likely claiming the patient’s failure to attend an EUO voided coverage. This type of defense requires careful consideration of procedural timing, particularly given the 120-day time limits for summary judgment motions that govern many civil proceedings.
Court’s Ruling on Procedural Motions
Jason Tenenbaum’s Analysis:
VIT Acupuncture, P.C. v State Farm Auto. Ins. Co., 2010 NY Slip Op 51560(U)(Civ. Ct. Kings Co. 2010)
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The Civil Court found, not surprisingly, that CPLR 3211(a)(1) cannot be used to establish the bona fides of a policy violation defense. This result was probably preordained in light of Fontanetta v Doe, 73 AD3d 78 (2d Dept 2010). Except to prove a point that a pre-answer motion might be inappropriate in this particular type of case, it would seem more logical for the parties to chart a summary judgment course and have the matter adjudicated on the merits. Now, an answer will be interposed and we will start this charade again. Perhaps in an upstate court, an additional motion that is added to the calendar is inconsequential. But, when you have 400 motions a day being calendared in Special Term in Civil Kings, each additional motion that does not need to made puts the attorneys and the staff that much closer to sharing the building with the small claims night-court term.
Key Takeaway
Courts cannot use CPLR 3211(a)(1) motions to resolve EUO no-show defenses in no-fault cases. Insurance companies and healthcare providers should focus on summary judgment strategies rather than ineffective pre-answer motions, especially given the heavy motion calendars in busy metropolitan courts like Brooklyn’s Civil Court.
Legal Update (February 2026): Since this 2010 analysis, New York’s no-fault insurance regulations have undergone multiple amendments, including revisions to examination procedures, time limits, and procedural requirements for EUO defenses. Additionally, CPLR provisions and case law interpretations regarding pre-answer motions in insurance coverage disputes may have evolved. Practitioners should verify current regulatory provisions and recent appellate decisions when evaluating procedural strategies for EUO no-show defenses.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Procedural Issues in New York Litigation
New York civil procedure governs every stage of litigation — from pleading requirements and service of process to motion practice, discovery deadlines, and trial procedures. The CPLR creates strict procedural rules that can make or break a case regardless of the underlying merits. These articles examine the procedural pitfalls, timing requirements, and strategic considerations that practitioners face in New York state courts, with a particular focus on no-fault insurance and personal injury practice.
201 published articles in Procedural Issues
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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