Mutual rescheduling in between two no shows – valid

EUO No-Show Defense and Mutual Rescheduling Agreements

Examinations Under Oath (EUOs) serve as a fundamental investigative tool in New York No-Fault Insurance Law cases, allowing insurers to question claimants and medical providers under oath about allegedly fraudulent claims. When claimants fail to appear for properly scheduled EUOs, insurers may disclaim coverage based on breach of cooperation requirements. However, complex factual scenarios arise when claimants appear for some scheduled EUOs but not others, particularly when mutual rescheduling agreements occur between no-show dates.

This case examines whether an insurer can sustain an EUO no-show defense when the sequence of events includes an initial failure to appear, followed by an appearance where mutual rescheduling was agreed upon, and then a second failure to appear for the rescheduled examination. The appellate court’s analysis provides important guidance on how courts evaluate partial compliance with EUO demands and the legal effect of consensual rescheduling arrangements.

Case Background

City Care Acupuncture, P.C. v Ameriprise Ins. Co., 2016 NY Slip Op 51036(U)(App. Term 2d Dept. 2016)

The defendant insurer scheduled an EUO for June 1, 2012, which the plaintiff’s assignor failed to attend. A second EUO was scheduled for June 15, 2012, and the assignor appeared on that date. However, rather than proceeding with the examination, the parties mutually agreed to reschedule it to July 9, 2012, at the assignor’s request to enable the assignor’s counsel to attend. When the assignor failed to appear for the July 9, 2012 rescheduled EUO, the defendant denied the claim based on EUO no-show.

The Civil Court granted defendant’s summary judgment motion dismissing the complaint, and the plaintiff appealed, limiting its arguments on appeal to what occurred during the June 15, 2012 appearance when the mutual rescheduling agreement was made.

Jason Tenenbaum’s Analysis:

“laintiffs’ assignor had failed to appear for an examination under oath (EUO) which had been duly scheduled for June 1, 2012; that although plaintiffs’ assignor had appeared for an EUO on June 15, 2012, there was a mutual agreement to reschedule that EUO; and that plaintiffs’ assignor had failed to appear on July 9, 2012, the date of the rescheduled EUO. Plaintiffs cross-moved for summary judgment. By order entered October 20, 2014, the Civil Court granted defendant’s motion and denied plaintiffs’ cross motion.

“n appeal, plaintiffs’ arguments are limited to what occurred when plaintiffs’ assignor appeared for the second scheduled EUO on June 15, 2012. Contrary to plaintiffs’ contention, defendant’s moving papers establish that, although plaintiffs’ assignor appeared for this EUO, there was a mutual agreement to reschedule it, at the assignor’s request, to enable plaintiffs’ assignor’s counsel to attend the EUO (cf. DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138, 2012 NY Slip Op 51443 ).”

This one makes sense. No show for the first. Shows for second but reschedules. Misses rescheduled date. Case tossed.

But I cannot help but but quote this line: “On appeal, plaintiffs’ arguments are limited to what occurred when plaintiffs’ assignor appeared for the second scheduled EUO on June 15...” I cannot help but think if the “partner affirmation” was addressed as a reason for denying summary judgment, the result would be different. OOh…… Query: Is it malpractice for a plaintiff not to address the partner affirmation as a basis for denial of defendant’s application for summary judgment?

Legal Significance of Mutual Rescheduling in EUO No-Show Cases

The Appellate Term’s decision establishes that mutual rescheduling agreements do not erase prior non-appearances or prevent insurers from relying on subsequent failures to appear. The court distinguished this scenario from cases where insurers unilaterally cancel or reschedule examinations, emphasizing that the June 15, 2012 rescheduling occurred at the assignor’s request. This consensual arrangement did not vitiate the defendant’s rights to enforce the rescheduled examination date or to disclaim based on the assignor’s subsequent failure to appear.

The decision reinforces that appearing for one scheduled EUO does not cure a prior no-show, and mutually agreeing to reschedule an examination creates a new obligation to appear at the rescheduled time. Courts will examine the totality of circumstances, including the pattern of non-compliance and whether the claimant demonstrated good faith efforts to cooperate with the insurance investigation. The fact that counsel requested the rescheduling to enable their attendance undercuts any argument that the insurer acted unreasonably in setting examination dates.

Practical Implications for Attorneys and Litigants

Plaintiffs and their counsel must address all potential grounds for defeating summary judgment motions based on EUO no-shows, not merely the most recent interaction with the insurer. As Jason Tenenbaum notes, limiting appellate arguments to what occurred during the June 15 appearance may have been a strategic error if other defenses existed. The reference to “partner affirmation” issues suggests that technical evidentiary challenges to the insurer’s proof might have succeeded if properly raised.

Insurance carriers should document the sequence of events meticulously when multiple EUO scheduling attempts occur. The existence of a mutual rescheduling agreement strengthens the no-show defense by demonstrating that the insurer accommodated the claimant’s needs, making the subsequent failure to appear even more problematic. Carriers should ensure their affidavits establish both the initial scheduling, any rescheduling agreements, and the final failure to appear, presenting a complete factual narrative that demonstrates sustained non-cooperation rather than isolated incidents.

Related Articles

• Understanding EUO Requirements in New York No-Fault Insurance Cases
• EUO No-Show Consequences: What Happens When You Skip Your Examination Under Oath in New York
• 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
• New York No-Fault Insurance Law