Mutual rescheduling issues

In New York no-fault insurance litigation, examinations under oath serve as a critical tool for insurance carriers to investigate claims and assess coverage obligations. The failure to appear at a properly scheduled EUO constitutes a breach of a condition precedent to coverage, potentially relieving the insurer of its obligation to pay benefits. However, not every change to an EUO schedule constitutes a “failure to appear” under New York law.

The distinction between a unilateral failure to appear and a mutually agreed rescheduling carries significant legal consequences. When a claimant or healthcare provider simply fails to attend a scheduled EUO without communication or justification, that absence can support a coverage denial. Conversely, when both parties agree to postpone an examination to a new date, that consensual rescheduling does not constitute a breach of the condition precedent.

This distinction reflects fundamental principles of contract law and reasonable conduct. Insurance policies require claimants to cooperate with investigations, including attending EUOs. However, this cooperation requirement must be interpreted in light of practical realities. Scheduling conflicts arise for legitimate reasons, and the law recognizes that parties may need to adjust examination dates through mutual agreement. To treat such consensual rescheduling as a “failure to appear” would elevate form over substance and penalize reasonable conduct.

Case Background

Apple Massage Therapy, P.C. v Adirondack Ins. Exch., 2017 NY Slip Op 50935(U)(App. Term 2d Dept. 2017) addressed this issue in the context of an insurance carrier’s attempt to establish a defense based on EUO non-appearance. Adirondack Insurance Exchange sought summary judgment dismissing the plaintiff provider’s no-fault claims, arguing that the assignor had failed to appear at scheduled EUOs.

According to Adirondack’s affidavit, the initial EUO had been scheduled but was then rescheduled two times by mutual agreement of the parties. Each rescheduling occurred before the scheduled examination date, meaning the parties communicated in advance and agreed to new dates rather than having the assignor simply fail to appear at an appointed time.

The carrier nevertheless argued that these reschedulings constituted failures to appear that satisfied the two-EUO-no-show requirement under New York law. The trial court denied the carrier’s summary judgment motion, and the insurance company appealed to the Appellate Term.

Jason Tenenbaum’s Analysis

“According to the affidavit submitted by defendant in support of its motion, the initial EUO had been rescheduled two times by mutual agreement, each time prior to the scheduled date. We do not consider a mutual rescheduling, which occurs prior to the date of a scheduled EUO, to constitute a failure to appear (see Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 ). Consequently, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not establish as a matter of law that plaintiff had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145, 2015 NY Slip Op 50701 ; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138, 2012 NY Slip Op 51443 ). As a result, the branch of defendant’s motion seeking summary judgment dismissing the complaint based upon the assignor’s failure to appear at two duly scheduled EUOs should have been denied.”

Mutual rescheduling issues apparent from the fact of the documents.

Legal Significance

The Appellate Term’s decision establishes important parameters for evaluating EUO compliance in no-fault cases. The ruling makes clear that courts will examine the substance of parties’ conduct rather than merely counting scheduling changes. A mutual agreement to reschedule demonstrates cooperation, not obstruction or bad faith avoidance of the examination.

This holding also protects insurers’ legitimate investigative interests while preventing abuse. Insurance carriers retain full authority to conduct EUOs and can insist on reasonable scheduling. However, they cannot manufacture technical defaults by characterizing consensual rescheduling as non-compliance. The decision requires carriers to document actual failures to appear—instances where the examinee was scheduled to attend, knew of the obligation, and simply did not show up without prior communication or agreement to reschedule.

The case further emphasizes the importance of documentation in EUO disputes. The defendant’s own affidavit revealed that the rescheduling was mutual, which proved fatal to its summary judgment motion. This illustrates how thorough record-keeping can either support or undermine a party’s litigation position depending on what the records actually show.

Practical Implications

For insurance carriers, Apple Massage Therapy teaches crucial lessons about EUO scheduling and documentation. When a claimant or provider requests to reschedule an EUO, the carrier should clearly document whether it agrees to the request. If the carrier consents to rescheduling, that consent precludes later characterizing the rescheduling as a failure to appear. Carriers should only agree to reschedule when willing to forego using that instance as a “no-show” for coverage denial purposes.

Conversely, if a carrier receives a last-minute cancellation request that it deems unreasonable, the carrier should explicitly refuse to reschedule and insist that the examinee appear as originally scheduled. If the examinee then fails to appear, that constitutes an actionable no-show. The key is making the carrier’s position clear in real time, not retroactively recharacterizing consensual conduct as non-compliance.

For healthcare providers and claimants, the decision confirms that reasonable communication about scheduling does not forfeit coverage rights. When legitimate conflicts arise, providers should promptly contact the carrier, explain the situation, and request alternative dates. So long as these requests are made before the scheduled examination date and the carrier agrees, no failure to appear occurs. However, providers should document all such communications to protect against later disputes about whether rescheduling was truly mutual.

Related Articles

• Understanding EUO Requirements in New York No-Fault Insurance Cases
• How to Challenge EUO No-Show Denials: When Improper Notice Can Reverse Insurance Denials in New York
• EUO No-Show Consequences: What Happens When You Skip Your Examination Under Oath in New York
• Personal Knowledge Requirements for EUO Non-Appearances: NY Legal Standards
• New York No-Fault Insurance Law