A hook to apply Unitrin in the Second Department through Clennon

Prestige Med. P.C. v Travelers Home & Mar. Ins. Co., 2014 NY Slip Op 24317 (Civ. Ct. 2014)

You can read this Civil Court case a bunch of different ways.  There are two statements of law that I think ring true.

Statement number 1

The first is that Unitrin does apply in the Second Department.  Judge Levine noted that Interboro v. Clennon  cited Unitrin for the proposition of law that the failure to cooperate with an EUO allows a disclaimer.  Unitrin of course stands for the proposition that a failure to attend IME’s voids coverage.  Unitrin was supported through American Transit v. Lucas, where that Court cited to NY Presbyterian v. Countrywide for the proposition of law that the failure to attend IMEs is an absolute coverage defense.  In American States v. Huff (an extremely important case in this arena for so many reasons) the Court held that the failure to participate in an EUO is an absolute coverage defense.  This would be attending and saying “I am not going to answer questions” or even prior to a first no show calling the insurance company or their agent and saying “I am not going to appear, get lost.”

Judge Levine drawing in a decision by Judge Hirsh (which he probably will not follow because he is bound by the Appellate Term’s failure to recognize or cite Clennon in favor of Lincoln General from 2009), has held that she will follow Unitrin.  Or course, JHO Spodek told the world he will not let “peer hearsay” into evidnec despite what the Appellate Term says, and we all know where that got his cause.  A trailblazer with an illusory cause?

Statement number 2

The second statement is that a provider EUO must be scheduled within 15 business days of the completed EIP EUO to preserve the toll.  This is nothing new, as the Appellate Term, First Department held this way last year in a NYCM case.  She goes on to say that Untirin will not be followed if the verification, viz, provider EUO demand is mailed more than 15 business days following the EIP EUO, and the day for day deductions in the regulations for timeliness of denials would apply.  This is probably a bit off base, trying to apply a hybrid of Unitrin and Lincoln General.  I think the Appellate term was implicit in holding that if the provider EUO demand is scheduled more than 30-days following the EIP EUO (verification issued more than 30-days following receipt of prior verification would run afoul of Ins Law. 5106 and Westchester v. GMAC ), the toll would be lost and the coverage defense would be lost.

Related Articles

• Understanding EUO Requirements in New York No-Fault Insurance Cases
• EUO No-Show Consequences: What Happens When You Skip Your Examination Under Oath in New York
• Understanding EUO Denial: When Insurance Companies Can Substantiate Coverage Denials
• Personal Knowledge Requirements for EUO Non-Appearances: NY Legal Standards
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2014 post, New York’s no-fault regulations and EUO-related case law may have evolved significantly. Practitioners should verify current Second Department precedent regarding EUO cooperation requirements and absolute coverage defense standards, as subsequent appellate decisions may have clarified or modified the Unitrin/Clennon framework discussed here.