Mutual rescheduling prior to the first no-show

Insurance companies frequently attempt to deny no-fault claims based on an insured person’s alleged failure to appear at examinations under oath (EUOs). However, the procedural nuances surrounding EUO scheduling can significantly impact whether a denial is justified. Understanding when rescheduling constitutes a legitimate accommodation versus a missed appointment is crucial for both insurers and practitioners in New York No-Fault Insurance Law.

The distinction becomes particularly important when parties mutually agree to reschedule before the original examination date. Courts have established clear guidelines about what constitutes an actual “no-show” versus a legitimate scheduling change, which can determine whether an insurer has grounds to deny coverage.

When insurance carriers schedule examinations under oath, they must provide adequate notice and reasonable scheduling accommodations. New York’s regulatory framework recognizes that scheduling conflicts can arise legitimately, requiring flexibility from both parties. However, carriers cannot convert reasonable accommodation requests into grounds for claim denial. The line between cooperation and non-compliance becomes critical in determining whether an insurer has properly preserved its right to disclaim coverage.

This case illustrates how technical compliance with procedural requirements differs fundamentally from substantive non-compliance demonstrating bad faith or lack of cooperation. Courts apply different standards to mutual rescheduling arrangements made before the scheduled date versus unilateral failures to appear without advance notice or explanation.

Case Background

In Five Boro Psychological Services, P.C. v Utica Mutual Insurance Co., the insurance carrier denied a no-fault claim based on the assignor’s alleged failure to appear at scheduled examinations under oath. The carrier’s denial letters cited multiple missed EUO appointments as justification for disclaiming coverage.

However, the procedural history revealed that the initial EUO had been rescheduled through mutual agreement before the original appointment date. The assignor’s representative contacted the carrier’s counsel in advance, explained the scheduling conflict, and obtained agreement to reschedule the examination for a later date. This rescheduling occurred before the original EUO date arrived, meaning the assignor never actually failed to appear for any examination that remained on the calendar at the time of the scheduled appointment.

The carrier nevertheless counted this mutually rescheduled appointment as one of the assignor’s “failures to appear,” using it to support the claim that the assignor had exhausted all permissible opportunities to comply with the EUO requirement. The court evaluated whether this characterization properly reflected the distinction between cooperative rescheduling and non-compliance.

Jason Tenenbaum’s Analysis:

Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 2013 NY Slip Op 52005(U)(App. Term 2d Dept. 2013)

“Defendant denied the claim at issue based upon the alleged failure by plaintiff’s assignor to appear at duly scheduled examinations under oath (EUOs). However, according to the affirmation submitted by defendant’s counsel, the initial EUO had been rescheduled by mutual agreement, prior to the date it was to occur. A mutual rescheduling, which occurs prior to the date of the scheduled EUO, does not constitute a failure to appear”

The mutual rescheduling trap. It is alright to reschedule prior to the no-show date, but make sure you afford the EIP a third attempt to attend the EUO/IME

Legal Significance

The Appellate Term’s decision establishes an important distinction between non-compliance and reasonable accommodation. When parties engage in good faith scheduling discussions before an appointment date, resulting in mutual agreement to reschedule, this cannot logically constitute a “failure to appear” at the original date. The assignor did not fail to appear at a scheduled examination; rather, both parties agreed in advance that the examination would occur on a different date.

This principle protects insureds from having legitimate scheduling accommodations weaponized against them in subsequent coverage disputes. Insurance law balances carriers’ legitimate need to investigate claims against insureds’ rights to reasonable procedural protections. When carriers agree to reschedule examinations, they implicitly acknowledge that the original date is no longer operative. They cannot later claim that the insureds failed to comply with examination requirements for dates that both parties agreed would not proceed as originally scheduled.

The decision also reinforces the three-examination rule in New York no-fault practice. Even if an insured fails to appear for properly noticed examinations, carriers must generally provide three opportunities before validly disclaiming coverage based on EUO or IME non-appearance. When one of those alleged “failures” actually represents mutual rescheduling, it cannot count toward the three-attempt threshold.

Practical Implications

Insurance carriers must carefully document the distinction between mutual rescheduling and unilateral non-appearance. When agreeing to reschedule examinations, carriers should issue new scheduling letters that clearly indicate the original date is cancelled by mutual agreement, not by assignor non-appearance. This documentation prevents later confusion about whether the assignor failed to comply with examination requirements.

For providers and their counsel, this decision offers a defensive strategy when carriers assert EUO or IME no-show defenses. Carefully review the scheduling correspondence to identify any instances where examinations were rescheduled by mutual agreement before the original dates. These cannot properly be characterized as failures to appear and should not count toward the carrier’s three-attempt requirement.

Key Takeaway

Courts will not treat mutual rescheduling as a “no-show” when both parties agree to change the examination date before the original appointment. However, insurers must still provide the required three opportunities for the insured to attend the EUO or IME. This prevents insurers from using legitimate scheduling accommodations as grounds for claim denials while maintaining procedural fairness for all parties involved.

Legal Update (February 2026): Since this 2013 analysis, New York no-fault EUO procedures may have been modified through regulatory amendments or updated Department of Financial Services guidance. The mutual rescheduling principles discussed remain foundational, but practitioners should verify current procedural requirements and notice provisions under the most recent No-Fault Law regulations and case law developments.

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