EUO issues

Leave denied

By Jason Tenenbaum | June 28, 2011 | 8 min read

Key Takeaway

Court denies leave in Unitrin v Bayshore Physical Therapy case, highlighting challenges healthcare providers face under current no-fault insurance regulations.

Court Denies Leave in Key No-Fault Insurance Case

The relationship between healthcare providers and insurance carriers in New York’s no-fault system continues to evolve through court decisions that shape the landscape of medical billing and coverage disputes. In Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the court’s denial of leave represents another example of how current regulatory frameworks can sometimes favor insurance carriers over healthcare providers.

This case touches on fundamental issues within New York No-Fault Insurance Law, particularly regarding the procedural requirements that govern disputes between providers and insurers. The decision reinforces existing patterns in no-fault litigation where strict adherence to regulatory procedures often determines case outcomes, regardless of the underlying merits of a provider’s claim.

Understanding these dynamics is crucial for healthcare providers who must navigate an increasingly complex regulatory environment while seeking fair compensation for medical services provided to no-fault patients.

Jason Tenenbaum’s Analysis:

Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 2011 NY Slip Op 76777 (2011)

I was right on this one. I am waiting for the NY3d cite so I can update my citation for this case. There is no surprise here. The only thing that can help the providers now are new Insurance Department regulations. Who would have thought that the constriction of the current regulations would actually, on some level, benefit the insurance carriers? I, for one, would never have thought that to be the case.

Key Takeaway

This decision exemplifies how current no-fault insurance regulations can inadvertently favor insurance carriers over healthcare providers. The case underscores the importance of strict procedural compliance and highlights the need for updated Insurance Department regulations to address the imbalances in the current system. Providers facing similar challenges should carefully review procedural requirements, particularly regarding EUO objections and IME compliance.

Legal Update (February 2026): Since this 2011 decision, New York’s no-fault insurance regulations have undergone several significant amendments, particularly regarding procedural requirements for provider disputes, fee schedules, and examination under oath (EUO) procedures. The regulatory framework governing provider-insurer disputes and the standards for denial of coverage claims may have evolved substantially since the Unitrin Advantage decision. Practitioners should verify current provisions under 11 NYCRR 65 and related regulations, as well as any intervening appellate decisions that may have modified the procedural landscape discussed in this case.

Filed under: EUO issues IME issues

About the Author

Jason Tenenbaum

Jason Tenenbaum is a personal injury attorney serving Long Island, Nassau & Suffolk Counties, and New York City. Admitted to practice in NY, NJ, FL, TX, GA, MI, and Federal courts, Jason is one of the few attorneys who writes his own appeals and tries his own cases. Since 2002, he has authored over 2,353 articles on no-fault insurance law, personal injury, and employment law — a resource other attorneys rely on to stay current on New York appellate decisions.

Education

Syracuse University College of Law

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24+ Years

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2,353+ Published

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7 States + Federal

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Discussion

Comments (21)

Archived from the original blog discussion.

Larry Rogak Jun 28, 2011

Thank you, Appellate Division First Department, for this “full employment act” for attorneys.

mitchell lustig Jun 28, 2011

I am somewhat surprised because I believed that the decision of the First Department conflicted with the Court of Appeals decision in Chubb. No-fault law is in a state of flux. Nothing is predictabel anymore.

JT Author Jun 28, 2011

There is more to life than no-fault. The COA has told us that it has had enough of this stuff and that if you want relief, go to the Department of Insurance or the State Legislature.

Sun Jun 28, 2011

“There is more to life than no-fault. The COA has told us that it has had enough of this stuff and that if you want relief, go to the Department of Insurance or the State Legislature.” In New York State, all the carrier has to do to deny all No-Fault benefits is outsource its IME notices to a 3rd party. The insured receives two letters from an unknown commercial entity, printed in 9pnt type. When the letters are thrown away as junk mail, the trap is set. No medical coverage for you. There is no analogue for this sort or technical attack on basic healthcare coverage in any other State in this nation. New York now stands alone, to an incredible degree. The Court of Appeals picked the wrong time to go to sleep. There is a clear split of authority that the Court of Appeals is now tolerating as well. The denial has placed both the Courts and insureds in an impossible position. Just a couple of weeks ago the Term refused to follow Unitrin, recognizing the split.: “Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff’s claim based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 877 N.Y.S.2d 340 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, AD3d , 918 N.Y.S.2d 473, 2011 NY Slip Op 1948 [1st Dept 2011]). [**3] Accordingly, the Civil Court’s order granting defendant’s motion for summary judgment dismissing the complaint is affirmed. In light of our determination, we need not reach the remaining contentions raised on appeal.” All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 2011 NY Slip Op 50949U, 2 (N.Y. App. Term May 23, 2011) I may be shortly commencing a blog detailing how New York State PIP law is vastly different than that of every other State, how the reasonable checks and balances have been eliminated by particular Courts over time leading to a point wherein virtually every healthcare claim is denied pro forma by the insurers. I think people injured in accidents in New York State will want to know the truth concerning why their insurance company is denying their claims, calling them names and why there is no redress with the SID.

JT Author Jun 28, 2011

You should enter the blogging world actually. It might take some pressure off of me to post too many Plaintiff-based posts. To state that another way, the Plaintiff’s bar can saber rattle on your blog and possibly the PIT, if it ever re-materializes. However, I do not want the readership or thought provoking diatribe that lands on here to totally disappear… It is a fine balance. Oh, if you want to “detail[] how New York State PIP law is vastly different than that of every other State, how the reasonable checks and balances have been eliminated by particular Courts over time leading to a point wherein virtually every healthcare claim is denied pro forma by the insurers,” then read my article, New York No Fault Law: A comparative analysis.

raymond Zuppa Jun 28, 2011

Going to the Superintendent of Insurance is akin to going to the insurance companies and saying please help me.

JT Author Jun 28, 2011

We learned that in Okslen ex rel Zuppa v. New York

Larry Rogak Jun 28, 2011

I have an idea to offer an alternative forum for no-fault litigation. The parties will have their cases decided by spinning the Wheel of Decision, based on carnival wheels (just like the Wheel of Fortune game show), and wherever the pointer lands, that’s the decision. Plaintiff verdict, defense verdict, and just to spice it up, a few spaces with prizes. This would provide the same degree of accuracy as the present system, with much less time and expense.

Sun Jun 28, 2011

Read your article long ago JT, nice one, but not the focus I was looking for.

JT Author Jun 28, 2011

I think you are going to have a hard time finding a state that is more plaintiff friendly than New York, even with these decisions that you seem to find unappealing.

raymond zuppa Jun 28, 2011

J.T. I never hit you below the belt. Now what the heck was Unitrin about in the first place.

raymond zuppa Jun 28, 2011

Hey that was good Larry. I agree with you and I found it entertaining — which is the most important aspect of your comment. But you are dead on. Why can’t we make it like the Wheel in Thuderdome. Why can’t we make it like the Thunderdome itself — you know the road warrior movies with that miscreant Mel Gibson.

raymond zuppa Jun 28, 2011

Okay now to get real. I just read the decision. Let me say this and be as blunt as I can in J.T.s House. The First Department’s decision is a disgrace. And by saying it is a disgrace I am looking solely to notions of legal precedent and Stare Decisis — not dollars and cents. How this court could have cited to Chubb for the proposition that an IME no show is a coverage defense is either 1) just plain stupid or 2) motivated by politics. Coverage defenses are defenses wherein there is no coverage. Whether a person shows up for an IME or not is a policy violation that has nothing to do with whether there was coverage. Coverage = was the vehicle covered by the subject policy of insurance; was there an accident as opposed to a staged event; and did the injuries arise out of the accident. The Court of Appeals intentional ignorance of its own precedent is either 1) stupid or 2) motivated by politics. Of course the Court of Appeals is being run by First Department escapees. Let me take it one step further. Politics has always meant one thing and one thing only. MONEY. We have a political First Department and a political Court of Appeals that is not pro business — it is pro huge business. These two courts could give a damn about law. The Court of Appeals has sold out the many intelligent minds that came before them and were far superior — they respected the law. Good predictive abilities JT. You predicted politics and money. Damn my infant son could do that. How do we deal with it J.T. We turn the 1st Dep’t and the Court of Appeals into cornflakes. We do it to the Superintendent — the whole damn executive branch of our government. The time is now. People are hurting. They are angry. And when the find that the Tea Party is just Neocons revisited they are going to be looking for some truth. And when the truth is told to them — that’s when we have true movement. Everything become cornflakes.

Alan M. Elis Jun 29, 2011

I had previously predicted that the Court of Appeals will hear Unitrin v Bayshore. It looks like my prediction was wrong. But, there is still a loophole in Unitrin v Bayshore. The notices and denials were timely. So, the First Department’s comments about the policy being voided ab initio are really dicta. In Westchester Medical v Lincoln, there was a late denial. The Court of Appeals may have thought that were was no actual conflict between the two cases. But, if the First Department were to rule on a case where there is a late denial, then the Court of Appeals may hear a case. I had previously noted that Unitrin v Bayshore also violated the Court of Appeals’s decision in Lentini: once an insurer issues a denial, the insurer may not create grounds for refusal to pay. I don’t know if the Motion for Leave to Appeal raised Lentini. As far as the First Department’s belief that a breach of a policy condition voids the policy ab initio, it means that if a First Department judge is in an accident and the judge’s passenger misses an IME, then the judge’s insurance is voided ab initio.

mitchell lustig Jun 29, 2011

I agree with Zuppa’s legal analysis only, not his comments about money and politics. I aslo agree with JT that the Court of Appeals could not give two sh–about no-fault. We now have to fend for ourselves. But there is a still a split between the Appellate Division First Department and Second Department regarding EUO no shows.

Raymond Zuppa Jun 29, 2011

Thanks Mitch for your fairness. The comments about money and politics are but the rantings of a madman that has seen to much and knows a truth that he should not known by anyone. Coming this close to the flame has driven me insance. Perhaps I need to clear my soul by telling all I have seen.

mitchell lustig Jun 29, 2011

Alan, I do not believe the denials in Unitrin were timely because there was only a blanket denial or general denial issued regarding the IME no-shows. However, I do beleive that the Court stated the IME letters were sent in a timely manner pursuant to th regulations.

Larry Rogak Jun 29, 2011

The HGTV show “Holmes on Homes” makes me think of No-Fault sometimes. For those who haven’t seen the show, Holmes is a contractor who gets called in by distraught homeowners when their abodes seem to have problems that defy remedy. Mr. Holmes starts taking off sheetrock and uncovers shoddy construction methods that are so egregious that a major tearout and rebuild are the only way to make everything work correctly. Who’s got the crowbar?

raymond Zuppa Jun 30, 2011

I do Larry and I am going to keep prying until the whole stinkin thing comes down. It is my remaing purpose in life to see No Fault die.

mitchell s. lustig Jul 1, 2011

My last thoughts on Unitrin. In my humble opinion, as we sit here today, no-fault is in a complete state of flux. Common understandings about no-fault based upon 15 years of solid precedent are being destoyed and eviscerated. Unitrin is a clear departure from the seminal holding in Chubb and it is now unclear what is and what is not a lack of coverage defense exempt from the 30 day preclusion rule. The First Department in Unitrin has held that an IME defense is lack of coverage defense. The Second Department in Westchester General v. Lincoln has held that an EUO no show defense is subject to the preclusion rule. In addition, the Second Department recently held in Nyack v. Allsate that a defense that a claimamt intentionally caused his own injury by attempting to commit suicide is not a lack of coverage defense and is subject to the 30 day rule. Despite all these contradictory precedents, it appears that by its failure to grant leave to appeal in Unitrin that the Court of Appeals is not interested in resolving these issues. Apparently, JT is right and the Court of Appeals has had enough of no-fault at least for a while. We are left in a vast waistland, like the wild west, where anything goes depending on the Judge and the abilities of the particular lawyer.

Raymond Zuppa Jul 1, 2011

Well spoken Mitch. Quite informative. J.T. is correct too. I just wish you didn’t refer to me with the line: “abilities of the particular lawyer.” I know I am going to win something someday. Maybe an award for not winning. Happy Independence Day to all especially our young men and women in the Armed Forces who are the true heroes. They should demand more money. Maybe the military will lock them out and they can all come home.

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Leave denied

Court Denies Leave in Key No-Fault Insurance Case

Key Takeaway

Jason Tenenbaum

Comments (21)

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