Key Takeaway
Court denies both summary judgment motions in no-fault case, highlighting importance of proper EUO scheduling and appearance requirements under Alrof precedent.
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.
Understanding Examination Under Oath Requirements in No-Fault Insurance Cases
The intersection of New York No-Fault Insurance Law and examination under oath (EUO) procedures continues to generate significant litigation. When insurance companies seek to deny claims based on a claimant’s failure to appear for scheduled examinations, courts must carefully evaluate whether proper procedures were followed by all parties.
The Alrof decision has become a cornerstone in EUO jurisprudence, establishing critical precedents about when an insurance company can successfully defend against no-fault claims based on examination failures. This particular case demonstrates the courts’ reluctance to grant summary judgment when EUO objections may be futile or when proper scheduling procedures haven’t been clearly established.
Understanding these dynamics is crucial for both healthcare providers seeking payment and insurance companies defending claims. The burden of proof regarding proper EUO scheduling and the consequences of non-appearance requires careful documentation and adherence to procedural requirements.
Case Background
In EMC Health Products, Inc. v Travelers Insurance Company, a medical provider brought suit in Kings County Civil Court to recover assigned first-party no-fault benefits. EMC Health Products, acting as assignee of the injured party Omayra Perez, moved for summary judgment. Travelers cross-moved for summary judgment dismissing the complaint, arguing that the plaintiff had failed to appear for scheduled examinations under oath.
The Civil Court (Judge Wavny Toussaint) denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, effectively dismissing the case. The plaintiff appealed to the Appellate Term, Second Department (2d, 11th, and 13th Judicial Districts), before Justices Pesce, Aliotta, and Solomon. The Appellate Term modified the lower court’s order, finding that while the plaintiff’s motion was properly denied, the defendant’s cross motion should also have been denied — resulting in both parties being sent back to litigate the matter on the merits.
Jason Tenenbaum’s Analysis:
EMC Health Prods., Inc. v Travelers Ins. Co., 2015 NY Slip Op 50475(U)(App. Term 2d Dept. 2015)
Another Alrof sighting…
“Consequently, plaintiff’s motion for summary judgment was properly denied. However, defendant’s cross motion should also have been denied, as defendant failed to establish, as a matter of law, its defense that plaintiff had failed to appear for properly scheduled examinations under oath”
Legal Significance
This decision is notable for the dual denial of summary judgment — a result that underscores how heavily fact-dependent EUO disputes remain in New York no-fault practice. The Appellate Term cited Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013 NY Slip Op 50458[U]) and Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (40 Misc 3d 130[A], 2013 NY Slip Op 51123[U]) — both landmark cases requiring insurers to affirmatively prove that EUOs were properly scheduled and that the assignee received adequate notice before non-appearance can serve as a valid defense.
The court also applied the Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. framework (114 AD3d 33 [2013]) on the plaintiff’s side, holding that the provider’s supporting affidavit failed to demonstrate either the absence of a timely denial or that any denial issued was conclusory, vague, or without merit as a matter of law. This dual standard — requiring both sides to make out their prima facie case with specificity — prevents either party from prevailing on bare assertions.
Practical Implications
For healthcare providers and their attorneys, this case is a reminder that moving for summary judgment in a no-fault action requires more than simply submitting the claim form and an affidavit. The affidavit must affirmatively address the denial — either establishing that none was timely issued or that the denial lacked merit. For insurers, the lesson is equally direct: relying on an EUO non-appearance defense demands documented proof of proper scheduling, proper mailing, and adequate notice. Without this evidentiary foundation, the defense will not survive summary judgment scrutiny regardless of whether the plaintiff actually appeared.
Key Takeaway
This decision reinforces that insurance companies cannot simply claim EUO non-appearance as a defense without proving proper scheduling procedures were followed. The court’s denial of both summary judgment motions reflects the fact-intensive nature of EUO no-show cases and emphasizes that procedural compliance must be clearly demonstrated rather than assumed. Practitioners on both sides should treat the Alrof line of cases as a checklist: every element — scheduling, mailing, notice, and follow-up — must be documented and presented with admissible evidence to prevail on a motion.
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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.
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May 27, 2015Common Questions
Frequently Asked Questions
What is an Examination Under Oath (EUO) in no-fault insurance?
An EUO is a sworn, recorded interview conducted by the insurance company's attorney to investigate a no-fault claim. The insurer schedules the EUO and asks detailed questions about the accident, injuries, treatment, and the claimant's background. Under 11 NYCRR §65-3.5(e), appearing for the EUO is a condition precedent to receiving no-fault benefits — failure to appear can result in claim denial.
What happens if I miss my EUO appointment?
Missing an EUO (known as an EUO 'no-show') can result in denial of your no-fault benefits. However, insurers must follow strict procedural requirements: they must send two scheduling letters by certified and regular mail, provide adequate notice, and submit a timely denial based on the no-show. If the insurer fails to comply with these requirements, the denial can be overturned at arbitration or in court.
What questions will be asked at a no-fault EUO?
EUO questions typically cover your personal background, employment history, the circumstances of the accident, your injuries and symptoms, treatment received, prior accidents or injuries, and insurance history. The insurer's attorney may also ask about your daily activities and financial arrangements with medical providers. You have the right to have your attorney present, and your attorney can object to improper questions.
Can an insurance company require multiple EUOs for the same claim?
Yes, under 11 NYCRR §65-3.5(e), an insurer may request additional EUOs as reasonably necessary to investigate a claim. However, repeated EUO requests may be challenged as harassing or unreasonable. Courts have found that insurers cannot use EUOs as a tool to delay claims indefinitely. Each EUO request must be properly noticed with adequate time for the claimant to appear.
Do I have the right to an attorney at my EUO?
Yes. You have the right to have an attorney represent you at an EUO, and it is strongly recommended. Your attorney can prepare you for the types of questions asked, object to improper or overly broad questions, and ensure the insurer follows proper procedures. Having experienced no-fault counsel at your EUO can help protect your claim from being unfairly denied.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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.
