Key Takeaway
A no-fault insurance case where both parties lost summary judgment motions due to factual disputes over EUO notice and appearance, highlighting strategic appeal considerations.
Procedural Missteps in No-Fault EUO Cases
Examination Under Oath (EUO) requirements are a critical component of New York No-Fault Insurance Law, but disputes frequently arise over whether proper notice was given and whether the insured actually appeared. The Urban Radiology case demonstrates how procedural failures by both parties can lead to missed opportunities and prolonged litigation.
In no-fault insurance disputes, insurers often deny claims based on an insured’s alleged failure to appear for a scheduled EUO. However, insurers must prove they properly mailed the EUO notice. When this proof is lacking, the denial becomes questionable. This case illustrates the strategic considerations that arise when both parties fail to secure summary judgment, particularly regarding EUO objections and procedural requirements.
Jason Tenenbaum’s Analysis:
Urban Radiology, P.C. v Clarendon Natl. Ins. Co., 2011 NY Slip Op 50601(U),2011 NY Slip Op 50601(U)(App. Term 2d Dept. 2011)
“the Civil Court denied plaintiff’s motion for summary judgment, as well as defendant’s cross motion for summary judgment dismissing the complaint, finding that “issues of fact remain for trial as to the propriety of the defendant’s denials and plaintiff’s purported failure to appear for an EUO. This appeal by defendant ensued from so much of the order as denied its cross motion.”
So Defendant failed to prove it mailed the EUO letters. Nothing spectacular about that. But, why didn’t Plaintiff cross-appeal? Defendant already appealed, so Plaintiff might as well should try to make some money through an answering brief – one that he has to write anyway.
Now, Defendant has a second chance to prevail.
Key Takeaway
When factual disputes prevent summary judgment for both parties in EUO cases, strategic appellate decisions become crucial. The plaintiff’s failure to cross-appeal when the defendant appeals gives the defendant another opportunity to win, despite their initial procedural failures in proving proper EUO notice was sent.
Legal Update (February 2026): EUO notice and procedural requirements discussed in this 2011 post may have been modified through subsequent regulatory amendments, updated fee schedules, or revised Department of Financial Services guidance. Practitioners should verify current EUO notice provisions, timing requirements, and proof standards under the most recent versions of 11 NYCRR Part 65 and applicable appellate decisions.
