Timely EUO viz GCL 25-a

Case Background

The timing requirements for examination under oath follow-up requests present a common source of litigation in New York no-fault insurance disputes. When an assignor or medical provider fails to appear for a scheduled EUO, the insurance company must send a second follow-up request within ten days of the missed appointment to preserve the EUO defense. This ten-day requirement appears straightforward, but complications arise when the tenth day falls on a weekend or holiday.

General Construction Law section 25-a addresses computation of time periods in New York statutes and regulations. This provision specifies that when a deadline falls on a Saturday, Sunday, or legal holiday, the deadline extends to the next business day. However, application of this statute to no-fault insurance regulations requires careful analysis of whether the deadline in question involves a required action or merely an option to act.

The First Department’s paired decisions in Encompass Insurance Co. v. Rockaway Family Medical Care demonstrate how courts apply GCL 25-a to EUO follow-up deadlines. These cases confirm that insurers receive the benefit of the next business day rule when the tenth day following an EUO no-show falls on a Sunday.

Encompass Ins. Co. v Rockaway Family Med. Care, P.C., 2016 NY Slip Op 01921 (1st Dept. 2016)

“Plaintiff’s second follow-up request for an examination under oath was sent 11 days after defendant failed to appear on the date set in the first request; the 10th day fell on a Sunday (see 11 NYCRR 65-3.6). Plaintiff correctly argues that it was entitled to an extension of time to the next business day to send its second follow-up request”

Encompass Ins. Co. v Rockaway Family Med. Care, P.C., 2016 NY Slip Op 01922 (1st Dept. 2016)

“It is undisputed that petitioner’s second follow-up request for an examination under oath was sent 11 days after respondent failed to appear on the date set in the first request and that the 10th day fell on a Sunday (see 11 NYCRR 65-3.6). Plaintiff was entitled to an extension of time to the next business day to send its second follow-up request”

Two point. First, why wait until day 10 (or here day 11) to serve a second EUO letter? Second, if you reviewed the record at Supreme Court, you will observe that there was a third EUO attempt. The letter was served more 10-days following the second no-show. Curiously, it did not appear that the medical provider raised this an issue.

Legal Significance

The application of GCL 25-a to no-fault insurance deadlines reflects broader principles of statutory construction and administrative law. When regulatory deadlines impose requirements on regulated parties, the law traditionally provides some flexibility for situations beyond the party’s control, such as weekends and holidays. The First Department’s holdings confirm that the ten-day deadline for EUO follow-up requests operates as a limitation on the insurer’s right to preserve the defense, not merely as a suggestion or best practice.

This interpretation serves important policy goals by preventing technical defaults on obligations when compliance would require action on days when businesses typically do not operate. Without the GCL 25-a extension, insurers would face an unreasonable choice when the tenth day falls on a Sunday: either mail the follow-up request on Saturday, potentially missing deadlines if Saturday mail service is unavailable, or forfeit the EUO defense entirely.

The decisions also implicitly address questions about calculating the ten-day period. The court counts days from when the assignor or provider failed to appear, not from when the insurer received notice of the no-show or from the date the first EUO request was sent. This clear counting method provides certainty to both parties regarding when follow-up deadlines expire.

Practical Implications

Despite the favorable ruling for insurers when the tenth day falls on a weekend, the safer practice involves serving second EUO requests well before the deadline expires. Waiting until day ten or eleven introduces unnecessary risk. If the insurer miscalculates the deadline, fails to properly account for holidays, or encounters mailing delays, the EUO defense may be lost entirely. Serving the second request within three to five days of the no-show eliminates these risks while preserving the defense.

The court’s observation about the third EUO attempt in the underlying record raises important strategic questions. Once an insurer has established the EUO defense by properly serving two requests and receiving two no-shows, there is generally no benefit to serving additional EUO requests. Each additional request creates new opportunities for procedural error and may complicate the evidentiary record. Unless the insurer has specific reasons for offering additional opportunities to appear, two properly executed EUO requests should suffice.

Medical providers and their counsel should carefully track the timing of EUO follow-up requests. When an insurer serves a second request more than ten days after a no-show, providers should immediately raise this defect in opposition to summary judgment motions or in arbitration proceedings. The failure to raise timing defects constitutes waiver of the argument and prevents asserting it on appeal or in subsequent proceedings.

Related Articles

• Understanding EUO Requirements in New York No-Fault Insurance Cases
• New York EUO Requirements: When Examination Under Oath Demands Are Untimely
• How to Challenge EUO No-Show Denials: When Improper Notice Can Reverse Insurance Denials in New York
• EUO validity and timeliness requirements under New York law
• New York No-Fault Insurance Law

Legal Update (February 2026): The examination under oath procedures and timing requirements discussed in this 2016 post may have been modified through amendments to 11 NYCRR 65-3 or related no-fault regulations. Practitioners should verify current provisions regarding follow-up EUO request deadlines, business day calculations, and procedural requirements, as regulatory changes may have occurred since the cited Encompass decisions.