Key Takeaway
Second Department affirms declaratory judgment for insurer after medical provider failed to appear for two examinations under oath, establishing material breach of no-fault policy.
IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 2014 NY Slip Op 02902 (2d Dept. 2014)
It is well established that the failure to comply with the standard policy provision requiring disclosure by way of submission to an examination under oath, as often as may be reasonably required, as a condition precedent to performance of the promise to indemnify, constitutes a material breach” of the policy, precluding recovery of the policy proceeds (Bulzomi v New York Cent. Mut. Fire Ins. Co., 92 AD2d 878, 878; see Interboro Ins. Co. v Clennon, 113 AD3d 596; Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 487-488). In support of that branch of its motion which was for summary judgment, the plaintiff, upon renewal, submitted evidence establishing “that it twice duly demanded an examination under oath” from the assignees, that the assignees twice failed to appear, and that the plaintiff “issued a timely denial of the claims” arising from the assignees’ provision of medical services to the assignors (Interboro Ins. Co. v Clennon, 113 AD3d at 597). Based upon the foregoing, the plaintiff established its prima facie entitlement to judgment as a matter of law. see id.; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721).
“The assignees also failed to raise a triable issue of fact as to the reasonableness or propriety of the demands for the examinations under oath”
“In light of our determination, we need not reach the plaintiff’s remaining contention.”
The Court did not cite to Unitrin, but instead cited to Fogel and Clennon. It appears that Clennon is now the new Westchester Lincoln, except the carrier won Clennon. The Court punted the pure Unitrin coverage issue; my hope is that whoever brings this argument has a good record with which to work.
Related Articles
- Second Department’s guidance on EUO no-show standards
- Consequences of walking out during an examination under oath
- First Department’s affirmation of EUO declaratory judgment victories
- When no reasonable excuse exists for EUO non-compliance
- Denial of Claims practice area
Legal Update (February 2026): Since this 2014 decision, New York’s no-fault insurance regulations and EUO procedural requirements may have been subject to regulatory amendments or clarifications by the Department of Financial Services. Practitioners should verify current provisions regarding EUO notice requirements, compliance standards, and denial procedures under the applicable insurance law and regulations.
