A DJ to nowhere

Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 2017 NY Slip Op 00916 (1st Dept. 2016)

“Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage (see 11 NYCRR 65-1.1; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 ; Allstate Ins. Co. v Pierre, 123 AD3d 618 ), plaintiff failed to supply sufficient evidence to enable the court to determine whether the notices it had served on the injury claimants for EUOs were subject to the timeliness requirements of 11 NYCRR 65-3.5(b) and 11 NYCRR 65-3.6(b) (see Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 ) and, if so, whether the notices had been served in conformity with those requirements (see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 ). Specifically, plaintiff failed to provide copies of any completed verification forms it may have received from any of the health service provider defendants or any other evidence reflective of the dates on which plaintiff had received any such verification forms, or otherwise assert that it never received such forms.”

The Court has delimited the proof necessary to demonstrate that a no show is timely, relative to the receipt of billing.  Manoo involved verification of treatment forms that were dated after the EUO letters, showing timeliness on its fact.  An affidavit from a claims representative expressing when billing per provider or per claim was received would be the “other evidence reflective of the dates on which plaintiff had received any such verification forms”.  The Court held in this manner in AT v. Vance and AT v. Longevity.

In light of the caselaw that has been established since 2015, this perfection of this appeal seemed strange as the result was preordained, and there does not appear anything in the face of this opinion that would cause a shift in the law.  Plus with Manoo at the Court of Appeals, the vitality of Unitrin may or may not be dead by years end.

Related Articles

• Understanding the impact of walking out of an EUO on coverage disclaimers
• First Department analysis of EUO no-show cases and Mapfre precedent
• Second Department guidance on EUO issues and personal knowledge requirements
• First Department’s approach to upholding EUO declaratory judgment victories
• Professional legal representation for insurance claim denials

Legal Update (February 2026): The regulatory provisions governing EUO notice requirements under 11 NYCRR 65-3.5(b) and 65-3.6(b) may have been subject to amendments since this 2017 decision, particularly regarding timeliness standards and verification form procedures. Practitioners should verify current provisions of these sections, as regulatory updates to no-fault insurance requirements occur periodically and could affect the procedural requirements for EUO notices and related evidentiary standards in declaratory judgment actions.