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.
This article is part of our ongoing declaratory judgment action coverage, with 417 published articles analyzing declaratory judgment action issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
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.”
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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.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Declaratory Judgment Actions in Insurance Law
Declaratory judgment actions under CPLR 3001 allow insurers and claimants to obtain a judicial determination of their rights under an insurance policy before or during the course of litigation. In the no-fault context, carriers frequently seek declaratory judgments on coverage, fraud, and policy procurement issues. These articles analyze the procedural requirements, strategic considerations, and substantive standards governing declaratory judgment practice in New York insurance disputes.
417 published articles in Declaratory Judgment Action
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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