Key Takeaway
New York court clarifies that mutually agreed EUO rescheduling doesn't constitute failure to appear, but subsequent no-shows do under no-fault insurance law.
Understanding the nuances of Examinations Under Oath (EUOs) in New York No-Fault Insurance Law can mean the difference between a successful claim and a denied one. EUOs are formal proceedings where insurance companies can question claimants under oath about their injuries and treatment. When scheduling conflicts arise, both parties often need to reschedule these examinations.
However, there’s an important legal distinction between mutually agreed rescheduling and outright failure to appear. A recent Appellate Term decision provides crucial guidance on this issue, particularly when EUO no-shows occur and how insurance companies can properly establish non-compliance. This case demonstrates how courts analyze the difference between legitimate rescheduling requests and situations where claimants simply fail to appear without justification.
Jason Tenenbaum’s Analysis:
Metro Psychological Servs., P.C. v Mercury Cas. Co., 2015 NY Slip Op 51644(U)(App. Term 1st Dept. 2015)
“While the rescheduling of the initial (April 10, 2012) EUO – by mutual agreement of the parties prior to the scheduled date – did not constitute a failure to appear (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138, 2012 NY Slip Op 51443), defendant established that the assignor subsequently failed to appear at the time of the rescheduled EUO (May 2, 2012) and follow-up EUO (May 21, 2012). Contrary to Civil Court’s determination, defendant’s rescheduling of the May 2, 2012 EUO upon the assignor’s failure to appear at that EUO, constituted a follow-up EUO request (see 11 NYCRR 65-3.6).”
Key Takeaway
This decision establishes that mutual rescheduling agreements don’t constitute EUO failures, but actual no-shows do. Insurance companies can properly establish non-compliance when claimants fail to appear at rescheduled examinations, and subsequent rescheduling by the insurer after a no-show constitutes a valid follow-up EUO request under New York regulations. Understanding this distinction is crucial for both providers and insurers in no-fault insurance disputes.
Legal Update (February 2026): Since this post’s publication in 2015, the regulatory framework governing EUO procedures under 11 NYCRR 65-3 may have been subject to amendments or clarifications, particularly regarding scheduling requirements and non-compliance determinations. Additionally, subsequent appellate decisions may have further refined the legal standards for distinguishing between acceptable rescheduling and failure to appear scenarios. Practitioners should verify current regulatory provisions and recent case law developments when advising clients on EUO compliance matters.
