EUO no show defense substantiated

Prima Facie Requirements for EUO No-Show Denials

Insurance carriers moving for summary judgment based on examination under oath no-shows must establish specific elements as a matter of law. The moving party bears the initial burden of demonstrating that it twice properly demanded an EUO, that the assignor twice failed to appear, and that the carrier issued a timely denial. This three-prong test derives from the no-fault regulatory framework and judicial interpretations defining insurers’ obligations when seeking to disclaim coverage based on examination non-compliance.

A recurring question in EUO no-show litigation involves whether carriers must demonstrate objective reasons justifying the examination demand as part of their prima facie showing. Some courts have suggested that insurers must explain why they needed the EUO, demonstrating legitimate investigative purposes rather than using examination demands as pretexts for denying claims. Other courts have held that establishing proper notice, non-appearance, and timely denial suffices for summary judgment, with no additional requirement to prove objective examination necessity.

Case Background

In Barakat Medical Care, P.C. v Nationwide Insurance Co., the healthcare provider sued to recover no-fault benefits for medical services provided to an accident victim. Nationwide moved for summary judgment, arguing the assignor failed to appear for properly scheduled EUOs. The carrier submitted affidavits from its special investigator establishing that EUO scheduling letters were timely sent to the assignor in accordance with standard office practices and procedures.

Additionally, Nationwide submitted affidavits from an investigator employed in its special investigations unit, along with stenographic transcripts, documenting that the assignor failed to appear for the duly scheduled EUOs. The Civil Court denied Nationwide’s motion, apparently requiring the carrier to demonstrate objective reasons for requesting the EUOs as part of its prima facie burden.

The Appellate Term, Second Department, reviewed whether Nationwide established its prima facie entitlement to judgment as a matter of law without proving objective justifications for the examination demands.

Barakat Med. Care, P.C. v Nationwide Ins. Co., 2015 NY Slip Op 51677(U)(App. Term 2d Dept. 2015)

(1) “In support of its motion, defendant submitted an affidavit from one of its special investigators, which affidavit established that the EUO scheduling letters had been timely sent to plaintiff’s assignor in accordance with defendant’s standard practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ). Defendant also annexed an affidavit from an investigator employed within defendant’s special investigations unit, and stenographic transcripts, to show that the assignor had failed to appear for the duly scheduled EUO”

(2) “Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an from the assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the issued a timely denial of the claims arising from the treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ). Thus, contrary to the determination of the Civil Court, defendant did not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law.”

The Court has now properly held Clennon to mean that an objective basis is not necessary to demonstrate a prima facie case on an EUO no-show case.

Legal Significance

The Barakat Medical Care decision clarifies that the Interboro Insurance Co. v Clennon standard for EUO no-show cases does not require carriers to prove objective justifications for examination demands as part of their prima facie showing at summary judgment. The three-element test—proper notice, failure to appear, and timely denial—exhausts the insurer’s initial burden. Once the carrier establishes these elements, the burden shifts to the provider to raise triable issues about notice defects, actual appearance, or denial timing.

This holding prevents healthcare providers from defeating summary judgment motions by arguing that carriers lacked sufficient reasons to demand EUOs. Such arguments might have merit as affirmative defenses if providers can demonstrate that examination demands were pretextual or served no legitimate investigative purpose. However, carriers need not preemptively negate these potential defenses in their moving papers. The burden remains on providers to raise and substantiate such claims in opposition.

The decision also reinforces the importance of proper evidentiary foundations for establishing mailing and non-appearance. Carriers must submit affidavits from individuals with personal knowledge of office mailing practices, demonstrating that EUO letters were sent according to standard procedures. Similarly, proof of non-appearance requires testimony from individuals present at the scheduled examination or stenographic records documenting the assignor’s absence.

Practical Implications

Insurance carriers should focus summary judgment motions on the three Clennon elements without expending resources proving objective examination necessity. Moving papers should include affidavits establishing standard mailing procedures, copies of EUO scheduling letters showing proper notice, proof of mailing dates demonstrating timeliness, and evidence of non-appearance through investigator testimony or stenographic transcripts. Carriers need not justify why they requested the EUOs or demonstrate specific investigative purposes.

Healthcare providers opposing EUO no-show motions must affirmatively raise defenses beyond merely challenging the carrier’s failure to prove objective necessity. Effective opposition requires evidence that notice was defective, that the assignor actually appeared, or that denials were untimely. Providers may also develop record evidence showing examination demands were pretextual, but such showings require more than conclusory allegations—providers must present specific facts demonstrating the carrier had no legitimate investigative reason for the examination.

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
• Personal Knowledge Requirements for EUO Non-Appearances: NY Legal Standards
• Understanding EUO Denial: When Insurance Companies Can Substantiate Coverage Denials
• New York No-Fault Insurance Law