Key Takeaway
Court ruling on Unitrin v All of NY case shows how declaratory judgment for EUO non-compliance failed due to untimely notice requirements under NY no-fault law.
Unitrin Advantage Ins. Co. v All of NY, Inc., 2018 NY Slip Op 00810 (1st Dept. 2018)
In the approximately 10 years, since Unitrin brought the notion of the condition precedent DJ. And now, 9 years later, it has almost been destroyed on a less than stellar record. You should read the record and then look at the oral argument (nobody asked a question except to point certain documentation was missing and it continued with the apology that it was a long day).
Point I
“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, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65—3.5(b) and 11 NYCRR 65—3.6(b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 , citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 ). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5(b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.”
Two problems here. First this was a provider EUO. The record discloses, establishes and discuss the fact that the patient EUO gave cause (allegedly) for the provider EUOs. Yet, no discussion of that timeline was set forth in the motion (see Quality v. Utica – allowing the tolling of a provider EUO based upon a prior patient EUO). I don’t get it. the EUO process started before the received billing. Had this been discussed, the 3.5(b) issue would be non-existent and I think the case would have been affirmed.
Also, did counsel discuss the one day off the back for each day between 15 business days and 30-calendar days? I sense that discussion did not occur.
Point II
Now, a bad global denial is fatal? ” The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 ).”
It is like anything else – some cases need to settle. This was one of them – watch the argument and you will see what I mean. Luckily, Manoo settled or the First Department DJ as we know it would probably be dead. That was a complete disaster in motion.
I think Defendant is entitled to attorney’s fees if the EIP was a driver or insured.
Many issues here will await another fully contested appeal.
Related Articles
- Understanding EUO notice requirements under 11 NYCRR 65-3.5(b) and 65-3.6(b)
- How insurance companies must prove proper EUO notice to sustain no-show denials
- Understanding New York No-Fault Insurance EUO Requirements: Why DFS Does Not Approve Improper Disclaimers
- Recent case law on EUO no-show declaratory judgments
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this post’s publication in 2018, the EUO notice requirements under 11 NYCRR 65-3.5(b) and related procedural provisions may have been subject to regulatory amendments or interpretive updates. Additionally, subsequent appellate decisions may have further clarified or modified the standards for declaratory judgment actions involving condition precedent defenses in no-fault cases. Practitioners should verify current regulatory provisions and recent case law developments when evaluating EUO timeliness requirements and DJ procedural standards.
