I wonder which plaintiff no-fault firm wrote this and had this State Senator introduce it…

What would happen if this became law? If you’re dealing with a no-fault insurance defense matter, an experienced attorney can help protect your rights.

Read the part about making sure the EIP knows that he has been caught committing fraud and that he should be exercising his 5th Amendment rights at the EUO.

Dear Claimant:

Here is evidence that you staged your accident. But do not worry, you can assert your 5th Amendment rights at our EUO and if you are evasive for more than 3 hours, then there is nothing we can do. Claimant’s like you will help keep our loss ratio over 150%. Thank you for doing business with us.

With warm regards, Soon to be defrauded insurance company.

STATE OF NEW YORK

________________________________________________________________________

7357

IN SENATE

May 2, 2012

___________

Introduced by Sen. NOZZOLIO — read twice and ordered printed, and when

printed to be committed to the Committee on Insurance

AN ACT to amend the insurance law, in relation to examination under oath

of covered persons pursuant to the comprehensive motor vehicle insur-

ance reparations act

The People of the State of New York, represented in Senate and Assem-

bly, do enact as follows:

1 Section 1. Section 5103 of the insurance law is amended by adding a

2 new subsection (i) to read as follows:

3 (i) With regard to any claim for first party benefits pursuant to this

4 article, the examination under oath of a person claiming to be a covered

5 person shall be scheduled by the insurer directly or by an attorney

6 appointed by the insurer for purposes of conducting such examination

7 under oath for whose conduct and activity the insurer shall be directly

8 responsible. The examination under oath of a claimant shall not be

9 demanded unless and until an application for first party benefits has

10 been received by the insurer. In any examination under oath, the claim-

11 ant shall have the right to be represented by counsel. The examination

12 shall be conducted upon oath or affirmation. The examination under oath

13 shall be conducted in the county where the claimant resides or, at the

14 claimant’s option, in the office of his or her representative unless the

15 claimant or claimant’s representative and the insurer agree otherwise.

16 The day and time that the examination under oath is scheduled shall be

17 agreed upon by the insurer and the claimant or claimant’s represen-

18 tative. A demand for an examination under oath shall be in writing and

19 shall be served personally or by registered or certified mail upon the

20 claimant unless the claimant is represented by an attorney, when it

21 shall be served personally or by mail upon his or her attorney. The

22 demand shall state the person before whom the examination is to be held,

23 the time, place and subject matter thereof. Written notice of an exam-

24 ination under oath must be received by the claimant or his or her repre-

25 sentative not less than fourteen days prior to the examination date to

26 be effective to require claimant to appear. The notice shall advise the

27 claimant of the right to video or otherwise record the examination. The

EXPLANATION—Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD15461-02-2

S. 7357 2

1 claimant shall be allowed reasonable adjournments which shall be

2 accepted up to no less than twenty-four hours prior to the examination.

3 If the claimant to be examined does not understand the English language,

4 upon reasonable notice to the insurer seeking the examination, the

5 insurer shall, at its own expense, provide a translation of all ques-

6 tions and answers, and may use the services of an interpreter whose

7 compensation shall be paid by the insurer seeking the examination. The

8 examination under oath shall be transcribed before a notary public

9 commissioned to administer oaths in this state. Any examination under

10 oath that is not so transcribed shall not be cited as the basis of any

11 denial of a claim for first party benefits. The transcript of the exam-

12 ination shall not be subject to or available for public inspection,

13 except upon court order upon good cause shown, but shall be furnished to

14 the claimant or his or her representative within sixty days of the exam-

15 ination. The conduct of examinations under oath shall be governed by the

16 Uniform Rules For The Conduct Of Depositions, Part 221 of the Uniform

17 Rules for the New York State Trial Courts. An examination under oath of

18 the claimant may be requested where (1) the insurer suspects fraud

19 perpetrated by the claimant which must be clearly conveyed to the claim-

20 ant or claimant’s representative. The insurer shall supply the claimant

21 or claimant’s representative with any and all evidence supporting its

22 claim of fraud not less than ten days prior to the examination under

23 oath so as to preserve the claimant’s federal fifth amendment right

24 against being compelled to testify against himself or herself; (2) the

25 insurer suspects that the claimant is receiving unnecessary treatment

26 which shall be clearly conveyed to the claimant or claimant’s represen-

27 tative. The insurer shall supply the claimant or claimant’s represen-

28 tative with any and all evidence supporting its claim that the treatment

29 is unnecessary, including but not limited to, peer reviews not less than

30 ten days prior to the examination under oath; (3) the insurer suspects

31 that the treating provider or facility is billing for treatment that the

32 claimant is not receiving which shall be clearly conveyed to the claim-

33 ant or claimant’s representative. The insurer shall provide the claim-

34 ant or claimant’s representative with any and all evidence supporting

35 its claim that the billing is not commensurate with the actual treatment

36 received, including but not limited to, the bills submitted by the

37 treating provider not less than ten days prior to the examination under

38 oath; or (4) the insurer has a suspicion that the claim needs to be

39 verified for a reason not enumerated above. The justification must be

40 relevant to the verification of the claim and the reason must be clearly

41 conveyed to the claimant or claimant’s representative. The insurer shall

42 provide supporting evidence to support its claim to the claimant or

43 claimant’s representative not less than ten days prior to the examina-

44 tion under oath. If the claimant or claimant’s representative wishes to

45 contest the request for an examination under oath because claimant or

46 claimant’s representative believes the request to be pre-textural or

47 suspects abuse in requesting the examination, he or she shall submit an

48 application to the department for review within five business days of

49 receipt of the written request from the insurer. No insurer shall deny a

50 claim based upon a treating provider’s failure to appear at an examina-

51 tion under oath other than bills submitted by such provider, nor shall

52 it form the basis of any liability on the part of any provider or claim-

53 ant for payment previously made relating to the claim in question. If

54 the treating provider fails to appear at an examination under oath, the

55 claimant shall not be held responsible to the provider for services

56 rendered by that provider. When an insurer requires an examination under

S. 7357 3

1 oath of a claimant to establish proof of claim, such requirement shall

2 be based on the application of objective standards so that there is

3 specific justification for the use of such examination. Insurer stand-

4 ards shall be available for review by department examiners, as well as

5 by the claimant and his or her representative. The scope of the exam-

6 ination under oath shall be narrowly tailored to the reasons or justi-

7 fication for seeking the examination as set forth in the insurer’s writ-

8 ten request. Any question that goes beyond the scope may be objected to

9 and such objected to question shall be submitted by the insurer within

10 seven days of the completion of the scheduled and conducted examination

11 to the department to determine if the objected to question is beyond the

12 scope of the examination. If any question is determined to be beyond the

13 legitimate scope of the examination and its original written justifica-

14 tion for the same, the claimant shall not be required to respond to the

15 question and cannot form the basis of a denial. If the objected to ques-

16 tion is determined by the department to be legitimate and narrowly

17 tailored to meet the objectives contained in the written request for the

18 examination under oath initially given by the insurer when the examina-

19 tion was scheduled, the examination may be rescheduled in the manner set

20 forth above for the limited purpose of receiving responses to the

21 improperly objected to questions, as determined by the department, and

22 responses to other questions that might naturally flow from the claim-

23 ant’s responses that are likewise narrowly tailored to investigate the

24 legitimate justification for conducting the examination given in the

25 insurer’s original written request, with the same rules for objections

26 applying as set forth above. An insurer shall not deny a claim based

27 upon an objection at an examination under oath unless the insurer

28 completes the above objection appeals procedure, wins said appeal, and

29 the claimant thereafter fails to comply with the demand for a further

30 examination under oath. Each examination under oath shall not exceed

31 three hours from the time the first question is asked until the last

32 question is asked unless reasonable cause exists. For examination

33 constructed with the aid of an interpreter, the time shall not exceed

34 four hours unless reasonable cause exists. The claimant or claimant’s

35 representative shall have the right to terminate the examination upon

36 the passage of the above time limits. The claim shall not be denied if

37 the claimant or claimant’s representative terminates the examination

38 after the allotted time has expired. Issues of liability related to any

39 ongoing or potential third party action arising from the subject claim

40 may be addressed at the examination under oath. The examination under

41 oath and any investigation related thereto shall be confidential and

42 shall not be subject to discovery or use in any third party action aris-

43 ing out of the incident that serves as the basis of the claim for first

44 party benefits, and shall not be used against the claimant in any such

45 third party action. Absent an admission of fraud by a claimant during

46 the examination under oath, or allegation of fraud perpetrated by the

47 claimant supported by the testimony elicited at the examination, the

48 examination under oath alone shall not form the basis of a denial of

49 first party benefits. Any denial of first party benefits based in part

50 upon an examination under oath, including one based on fraud by the

51 claimant, shall be accompanied by any other written reports, including

52 investigative, that in whole or in part form the basis of the denial.

53 The claimant and his or her representative shall have the right to

54 conduct an examination under oath, upon written request to the insurer,

55 of any individual, including the person or attorney conducting or

56 reviewing the examination, whose reports or opinions form the basis of

S. 7357 4

1 any denial of first party benefits based in whole or in part on the

2 examination. Once an insurer has denied further first party benefits to

3 the claimant for any reason, it shall be barred from seeking any further

4 verification of the claim including, but not limited to, conducting

5 medical examinations and/or further examinations under oath. The denial

6 of a claim for failure to attend an examination under oath shall not be

7 retroactive to the date of the claim, but shall only result in the

8 denial of all benefits received after the date of the examination under

9 oath.

Related Articles

• New York No-Fault Insurance Law
• Understanding IME No-Shows in New York No-Fault Insurance: Rights, Consequences, and Strategic Considerations
• The amendments to the regulations and what they mean to you
• No-Fault Verification Requirements: When Partial Compliance Isn’t Enough
• Understanding Legal Defenses in New York No-Fault Insurance Cases

Legal Update (February 2026): Since this 2012 post discussed proposed Senate Bill 7357 regarding examination under oath procedures in no-fault claims, practitioners should verify whether this or similar legislation was ultimately enacted, as New York’s Insurance Law Article 51 provisions governing EUOs and procedural requirements may have been amended in the intervening years.