Proof of Objective Standards Are Waived if EUO Demand Is Not Responded To

Understanding the Waiver of EUO Objections in No-Fault Cases

Examinations Under Oath (EUOs) represent one of the most contentious aspects of New York no-fault insurance law. Insurance carriers frequently use EUO demands as a tool to investigate and potentially deny claims, while healthcare providers and patients often challenge the legitimacy of these requests. A significant 2013 appellate decision clarified an important procedural rule: failing to respond to an EUO demand can waive your right to challenge the examination’s validity entirely.

This ruling has particular significance for practitioners familiar with Nassau County’s requirements for “objective standards” in EUO cases. The decision establishes that non-responsive parties cannot later argue that an insurance company failed to meet the burden of proving legitimate grounds for the examination request.

The Flatbush Chiropractic Decision

Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 51880(U)(App. Term 2d Dept. 2013)

The case involved a healthcare provider challenging an insurance carrier’s denial of no-fault benefits based on the provider’s failure to appear for an EUO. On appeal, the plaintiff raised multiple arguments attempting to undermine the carrier’s summary judgment motion.

Jason Tenenbaum’s Analysis:

“On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, that defendant lacked justification for its EUO requests, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.”

…

“Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard”

This case is significant because now proof of “objective standards” will be deemed waived if a provider or EIP does not respond to EUO demands. In District Nassau, my research has divined that those judges requires “objective standards” as part of a prima facie showing. That hopefully will end.

What Are EUO “Objective Standards”?

To understand the significance of this ruling, it helps to understand the “objective standards” debate that has persisted in no-fault defense litigation.

Some courts—particularly in Nassau County—have required insurance carriers to demonstrate that they had an objective, legitimate basis for demanding an EUO before that demand could serve as the foundation for a claim denial. Under this framework, carriers needed to show more than a routine desire to examine a claimant; they had to point to specific red flags or irregularities justifying the examination request.

This requirement created a significant hurdle for insurance carriers. Even when a provider completely failed to appear for a scheduled EUO, the carrier still had to prove its EUO demand was objectively justified before obtaining summary judgment. The result was that some providers could ignore EUO demands with relative impunity, knowing that attacking the carrier’s justification for the demand might defeat the motion regardless of the no-show.

How Waiver Changes the Analysis

The Flatbush Chiropractic decision disrupts this dynamic by introducing a straightforward waiver principle. If a provider or eligible injured person (EIP) does not respond to EUO demands in any way—not by appearing, not by objecting, not by requesting an adjournment—they forfeit the right to challenge those demands later.

This means providers cannot adopt a “sit back and attack” strategy. The court’s reasoning reflects a basic principle of procedural fairness: a party that never engages with a process has no standing to complain about defects in that process. If a provider believes an EUO demand lacks objective justification, the proper course is to raise that objection contemporaneously—not to ignore the demand entirely and raise the issue for the first time in opposition to summary judgment.

The waiver extends beyond just the objective standards question. The court’s language suggests that all objections to EUO requests—including challenges to mailing procedures and the adequacy of scheduling notices—are waived when the provider fails to respond in any fashion. This broad waiver principle significantly strengthens carriers’ ability to obtain summary judgment in EUO no-show cases.

Legal Significance: Impact on Nassau County Practice

The decision had particular resonance for practitioners in Nassau County District Court. As Jason Tenenbaum noted, his research indicated that Nassau County judges had been requiring proof of objective standards as part of a carrier’s prima facie showing on EUO-based summary judgment motions. This requirement was more demanding than what courts in other jurisdictions expected.

The Flatbush Chiropractic waiver rule effectively circumvents the objective standards requirement in cases where providers fail to respond. If a provider’s non-response triggers waiver of all EUO-related objections, carriers may no longer need to affirmatively prove objective standards—the issue simply never reaches the merits because the provider has forfeited its right to raise it.

This represents a meaningful shift in litigation strategy for both sides:

• For carriers: EUO no-show cases become significantly easier to prosecute through summary judgment, particularly in jurisdictions that previously demanded robust objective standards showings
• For providers: The cost of ignoring EUO demands increases dramatically, as silence now carries the additional penalty of waiving potentially meritorious procedural objections

Practical Implications

For Healthcare Providers

The most important takeaway for healthcare providers and their counsel is that ignoring EUO demands is no longer a viable litigation strategy. Even providers who believe an EUO demand is unjustified or improperly served should respond in some fashion. Options include:

• Appearing for the EUO while preserving objections on the record
• Sending a written response objecting to specific aspects of the demand
• Requesting adjournment to a mutually convenient date
• Formally objecting to the demand’s scope or justification in writing

Any of these responses likely preserves the provider’s right to challenge the EUO’s validity in subsequent litigation. The one approach that definitively forfeits those rights is complete silence.

For Insurance Defense Counsel

Defense attorneys handling no-fault EUO cases should document the provider’s non-response thoroughly. When moving for summary judgment based on EUO non-appearance, the motion papers should:

• Clearly establish that EUO demands were properly mailed
• Demonstrate that the provider failed to respond in any way
• Argue that all EUO-related objections are waived under Flatbush Chiropractic
• Note the waiver argument as an independent basis for summary judgment, separate from the substantive merits of the EUO demand

For the Courts

The Flatbush Chiropractic waiver principle provides courts with a clean procedural basis for disposing of EUO no-show cases without wading into the more complex objective standards analysis. This promotes judicial efficiency while still protecting providers who engage with the EUO process in good faith.

Related Articles

• EUO statements of law
• An objective standard is not necessary
• Non objected to EUO
• New York No-Fault Insurance Law

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Legal Update (February 2026): Since this 2013 analysis, New York’s no-fault insurance regulations have undergone several amendments, and appellate decisions may have further refined the standards for EUO waiver procedures and objective justification requirements. Practitioners should verify current CPLR provisions and recent case law regarding EUO response obligations, as procedural requirements and waiver standards may have evolved significantly over the past decade.