EUO No-Show Defense Sustained: Natural Therapy Acupuncture v State Farm

Key Takeaways

• In Natural Therapy Acupuncture v State Farm, the Appellate Term sustained the insurer’s EUO no-show defense on summary judgment.
• Mailing of the EUO scheduling letters and denials was proven through standard office practices and procedures — no individual recollection required.
• The affirmation of the attorney who was present in his office to conduct the EUO was sufficient personal-knowledge proof of the nonappearance.
• Because the provider never responded to the EUO requests, its objections to the reasonableness of those requests were waived — and no CPLR 3212(f) discovery was needed.

The Decision

Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 51310(U)(App. Term 2d Dept. 2014)

I often feel like this Plaintiff attorney is seeking to reinvent the wheel. It is just amazing how many times he appeals the SAME issues and (surprisingly) receives the SAME results. And each decision comments on one more subtle defect in this particular attorneys arguments. This is how bad law is made.

“In appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms or that plaintiff had failed to appear for the EUOs; 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.”

(1) “EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures”

(2) “the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.”

(3) “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 ”

(4) “Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion”

The Legal Framework

An examination under oath is one of the verification tools the no-fault regulation, 11 NYCRR Part 65, gives a carrier to investigate a claim before paying it. Appearance at a duly scheduled EUO is a condition precedent to coverage: when the claimant or its assignor fails to appear twice, the carrier may deny every bill under the claim.

To win summary judgment on that defense, the carrier must prove the familiar trilogy: timely and proper mailing of the scheduling letters, the claimant’s nonappearance on both dates, and a timely denial on no-show grounds. This decision shows the proof working on all cylinders — a counterpoint to the cases where carriers fail to substantiate the no-show with personal knowledge.

Two evidentiary doctrines carried the day. First, mailing may be established either by an affiant who actually mailed the letters or — far more commonly — by an affiant who describes the office’s standard practices and procedures designed to ensure that items are properly addressed and mailed. Second, nonappearance must be shown by someone with personal knowledge, and the attorney who sat in his office waiting to conduct the examination on both scheduled dates is exactly that witness.

The Waiver Holding: Silence Forfeits the Reasonableness Objection

The third and fourth holdings are the sleeper part of the decision. The provider argued that State Farm lacked justification for demanding EUOs in the first place, and that under CPLR 3212(f) it was entitled to discovery on the reasonableness of the requests before the motion could be decided.

The Appellate Term rejected both arguments for the same reason: the provider never responded to the EUO requests at all. A claimant who ignores verification requests entirely cannot later litigate whether those requests were reasonable, and because the objection was waived, no discovery on reasonableness was “necessary” under CPLR 3212(f).

The practical rule: objections to an EUO demand must be raised at the time of the demand — not for the first time in opposition to a summary judgment motion years later.

Why This Matters for Carriers and Providers

For carriers and defense counsel, this decision is a template. A standard-practices mailing affidavit, a conducting attorney’s affirmation of presence and nonappearance, and a timely denial will sustain the defense.

For medical providers, the message is equally clear: silence is the worst response to an EUO request. A provider who believes a demand is unjustified or burdensome should object in writing, request the basis for the demand, or appear and preserve objections on the record. Total non-response forfeits the reasonableness argument and tees up the condition-precedent defense. The broader EUO requirements in New York no-fault cases reward the party that papers its position contemporaneously.

Practice Pointers

• Defense: have the conducting attorney affirm presence on both scheduled dates; that affirmation is sufficient nonappearance proof under this decision.
• Defense: the mailing affidavit should describe the office’s standard mailing practices step by step — generation, addressing, posting — not just conclude that letters “were mailed.”
• Plaintiff: respond to every EUO request in writing, even if only to object; an unpreserved reasonableness objection “will not now be heard.”
• Plaintiff: CPLR 3212(f) is not a parachute — courts will not order discovery on an objection that was waived by total non-response.

Frequently Asked Questions

Can an attorney’s affirmation prove an EUO no-show in New York?

Yes. Under Natural Therapy Acupuncture v State Farm, the affirmation of the attorney who was present in his office to conduct the EUO on the scheduled dates was sufficient to establish the claimant’s failure to appear. The key is presence — the affiant must have been there.

What happens if a medical provider ignores an EUO request entirely?

Its objections to the request are waived. The Appellate Term held that a plaintiff who “does not claim to have responded in any way to the EUO requests” cannot later challenge the justification or reasonableness of those requests in opposing summary judgment.

How does an insurer prove it mailed EUO scheduling letters?

Either through an affiant with personal knowledge of the actual mailing or — more commonly — through an affidavit describing the office’s standard practices and procedures designed to ensure proper mailing, as State Farm did here.

Related Resources

• EUO Requirements in New York No-Fault Insurance Cases — the firm’s cluster hub on EUO law
• The firm’s Legal Encyclopedia
• No-Fault Defense practice
• Understanding EUO Denial: When Insurance Companies Can Substantiate Coverage Denials
• EUO no-show mailing and personal knowledge substantiated
• Personal knowledge is well not too personal
• Validity of EUO, Appellate Term, 2d Dept: Take two
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2014 decision, New York’s no-fault regulations have undergone several amendments affecting EUO procedures, including updates to notice requirements and scheduling protocols. Additionally, appellate courts have continued to refine standards for proving mailing and non-appearance at EUOs. Practitioners should verify current provisions under 11 NYCRR Part 65 and recent case law regarding EUO defense requirements and procedural standards.