Why Trust This Analysis
This article is part of our ongoing ime issues coverage, with 149 published articles analyzing ime 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 Excusable Absence for No-Fault Examinations Under Oath
In New York’s no-fault insurance system, healthcare providers seeking payment for medical services must sometimes comply with insurance company requests for examinations under oath (EUOs). When an assignor fails to appear for a scheduled EUO, insurance companies often use this as grounds to deny claims. However, courts recognize that certain circumstances may constitute valid excuses for non-appearance.
Key Takeaways
- In Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co., the Appellate Term, First Department found triable issues as to whether the assignor’s EUO no-show was excusable.
- The carrier’s own moving papers — letters from its no-fault examiner and supervisor acknowledging the assignor’s incarceration — created the fact issue rather than eliminating it.
- Incarceration does not automatically excuse a no-show, but it forces a case-by-case examination of whether non-appearance was reasonable.
- A carrier that knows the assignor is in custody should consider conducting the EUO at the facility rather than defaulting the claim.
A decision from the Appellate Term in Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co. highlights an unusual but important scenario where an assignor’s incarceration was considered a potentially excusable reason for missing an EUO. This case demonstrates that courts will examine the specific circumstances surrounding a no-show situation rather than automatically ruling against the provider.
The Decision
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Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co., 2016 NY Slip Op 50762(U)(App. Term 1st Dept. 2016)
“he limited record so far developed presents triable issues as to whether the assignor’s failure to appear was excusable” (see IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 ). In this regard, defendant’s moving submission, which contains letters from its no-fault examiner and no-fault supervisor acknowledging the assignor’s incarceration, creates rather than eliminates genuine triable issues.”
The EUO should have taken place – if anywhere – at the prison or jail. For what its worth, if someone is incarcerated, they are probably not treating and billing no-fault.
The Legal Framework: EUOs as a Condition Precedent
The mandatory personal injury protection endorsement in 11 NYCRR 65-1.1 requires an eligible injured person — and, by extension, an assignor whose provider stands in his or her shoes — to appear for examinations under oath as reasonably required by the insurer. Appearance is treated as a condition precedent to coverage. A carrier that properly schedules two EUOs, proves mailing of the scheduling letters, and proves the non-appearances can ordinarily defeat the claim.
But “condition precedent” has never meant “strict liability.” The case law that has grown up around EUO no-show defenses leaves room for the question whether a particular failure to appear was excusable. That is where Omega Diagnostic sits. The Appellate Term did not hold that incarceration always excuses a no-show; it held that the limited record presented triable issues as to whether this assignor’s failure to appear was excusable.
What makes the decision memorable is the source of the fact issue. The carrier’s own submission included letters from its no-fault examiner and no-fault supervisor acknowledging that the assignor was incarcerated. A movant for summary judgment must eliminate triable issues, not generate them. By documenting its knowledge of the incarceration while still pressing a no-show denial, the carrier handed the provider its opposition.
Why This Matters for Carriers and Providers
For carriers, the decision is a claims-handling warning. When the file shows the carrier knew the assignor could not attend — because he was in custody — a reflexive no-show denial invites exactly the result Praetorian got. The practical alternatives are to arrange the examination at the correctional facility, adjourn the EUO until release, or build a record explaining why neither was feasible. As the original note observed, if the EUO was going to happen anywhere, it was going to happen at the prison or jail.
For providers and their counsel, Omega Diagnostic confirms that a no-show denial is not the end of the analysis. Discovery into what the carrier knew, and when, can convert an apparently airtight condition-precedent defense into a triable question. The carrier’s internal correspondence — here, the examiner’s and supervisor’s letters — is often the best evidence.
There is also a common-sense underwriting observation embedded in the original post: an incarcerated assignor is probably not treating and generating new no-fault bills. The dispute is almost always about services rendered before custody, which makes the timing of the EUO demands and the dates of service worth scrutinizing in any of these files.
Practice Pointers
- Carriers: before denying on an EUO no-show, check the file for any acknowledgment that the assignor was unavailable for reasons beyond his control. If incarceration is documented, schedule the EUO at the facility or document why that was impossible.
- Providers: demand the carrier’s scheduling correspondence and internal claim notes in discovery. Letters acknowledging incarceration defeat summary judgment, as Omega Diagnostic shows.
- Both sides: remember that proof of mailing of the scheduling letters remains a separate, independent battleground in every no-show case.
Frequently Asked Questions
Is missing an EUO automatic grounds for a no-fault denial in New York?
No. Appearance at a properly scheduled EUO is a condition precedent to coverage, but courts will examine whether the failure to appear was excusable. Omega Diagnostic held that documented incarceration created triable issues on that question.
Can an insurance company take an EUO while the claimant is in jail?
Nothing prevents a carrier from arranging an examination under oath at a correctional facility, and the better practice — when the carrier knows the assignor is incarcerated — is to do exactly that rather than deny the claim for non-appearance.
What evidence defeats an EUO no-show defense?
Evidence that the absence was excusable, or that the carrier failed to prove proper scheduling and mailing. In Omega Diagnostic, the carrier’s own letters acknowledging the assignor’s incarceration created the fact issue that defeated summary judgment.
Related Resources
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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Aug 6, 2013Frequently Asked Questions
Common Questions About This Topic
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
Is missing an EUO automatic grounds for a no-fault denial in New York?
No. Appearance at a properly scheduled EUO is a condition precedent to coverage, but courts will examine whether the failure to appear was excusable. *Omega Diagnostic* held that documented incarceration created triable issues on that question.
Can an insurance company take an EUO while the claimant is in jail?
Nothing prevents a carrier from arranging an examination under oath at a correctional facility, and the better practice — when the carrier knows the assignor is incarcerated — is to do exactly that rather than deny the claim for non-appearance.
What evidence defeats an EUO no-show defense?
Evidence that the absence was excusable, or that the carrier failed to prove proper scheduling and mailing. In *Omega Diagnostic*, the carrier's own letters acknowledging the assignor's incarceration created the fact issue that defeated summary judgment.
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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.
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