Key Takeaway
Second Department case analyzing IME failure as coverage defense in New York no-fault insurance law, examining conditions precedent to insurer liability.
This article is part of our ongoing euo issues coverage, with 197 published articles analyzing euo issues 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.
Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY Slip Op 50393(U)(App. Term 2d Dept. 2015)
This was an interesting case. Here, the Appellate Term explicitly held that the failure to appear for an IME was ?possibly? a coverage defense. I will have to wait for further cases to clarify this point.
“In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim form, which denied this claim based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.
Plaintiff’s contention that it is entitled to summary judgment upon its first cause of action lacks merit. While defendant argued that it was entitled to summary judgment dismissing this cause of action because plaintiff had failed to provide requested verification, the Civil Court found that there was an issue of fact as to whether plaintiff had responded to defendant’s verification requests. However, we need not reach this issue since, as noted above, the record establishes that plaintiff’s assignor failed to appear for duly scheduled IMEs, and, thus, on that ground, defendant is likewise entitled to summary judgment dismissing plaintiff’s first cause of action (Stephen Fogel Psychological, P.C., 35 AD3d 720). As this appellate court has the power to search the record on this appeal by plaintiff and to award summary judgment to the nonappealing defendant (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 ), upon searching the record, we award summary judgment to defendant dismissing plaintiff’s first cause of action (Stephen Fogel Psychological, P.C., 35 AD3d 720).:
Related Articles
- Understanding EUO Requirements in New York No-Fault Insurance Cases
- How to Challenge EUO No-Show Denials: When Improper Notice Can Reverse Insurance Denials in New York
- 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
- New York No-Fault Insurance Law
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.
Keep Reading
More EUO issues Analysis
EUO No-Show: Attorney Affirmation Sufficient Despite Time Lapse Between No-Shows and Execution
Appellate Term reverses Civil Court, holding that an attorney's affirmation attesting to plaintiff's failure to appear at EUOs was sufficient despite.
Feb 25, 2026
EUO no-show – correct statement of law
Court ruling clarifies that insurers cannot enforce EUO requests sent more than 30 days after receiving claims, making late requests nullities under New York no-fault law.
May 22, 2021
EUO No-Show Legal Issues: Notice Requirements and Your Rights in Long Island and NYC
Excel Imaging case analysis: EUO no-show notice requirements in Long Island & NYC. Protect your no-fault insurance rights. Call 516-750-0595 for legal help.
Jan 27, 2012
A basic EUO no-show
NY appellate court ruling on EUO no-show requirements: insurers must prove two proper demands, two failures to appear, and timely denial for summary judgment.
Nov 13, 2018
EUO defense not sustained
Court ruling on EUO defense failure when law firm partner's affirmation lacked personal knowledge of plaintiff's nonappearance at examinations under oath
Mar 29, 2016
When a delay letter is not good enough
Court rules delay letters requesting EUO without verification insufficient to toll 30-day payment deadline in NY no-fault insurance cases - key requirements explored.
Aug 6, 2014Was this article helpful?
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.
If you need legal help with a euo issues matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
