Dilemma and dogma

Hertz Vehicles, LLC v Best Touch PT, P.C.,2018 NY Slip Op 04854 (1st Dept. 2018)

(1) “Plaintiff failed to meet its burden of filing “proof of the facts constituting the claim” for a default declaratory judgment (CPLR 3215) against the medical provider defendants, i.e., proof establishing that the notices of examination under oath (EUO) that it served on those defendants complied with the timeliness requirements of 11 NYCRR 65-3.5(b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437 ; Natl. Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 ). An insurer must request any “additional verification … to establish proof of claim” within 15 business days after receiving the “prescribed verification forms” it forwarded to the parties required to complete them (11 NYCRR 65-3.5, ). As none of the motion papers, including the affidavit by plaintiff’s claims adjuster, annexes or gives the dates of the prescribed verification forms or other proofs of claim submitted by the medical provider defendants, it is not possible to determine whether the EUO notices were sent to them within 15 business days of plaintiff’s receipt of the form”

What was interesting is in the last appeal of a lost DJ, the Court appeared to walk around 65-3.5 and 65-3.6 when the issue involved a default.  The rationale could be found in the dissent of Longevity and sub silentio set forth in the majority opinion in the same.  This case now applies the summary judgment standard to defaults.

(2) “Plaintiff’s argument on appeal that the providers’ bills are “prescribed verification forms” and its attempt to relate the deadlines applicable to one defendant’s EUO requests to another defendant’s submission of claims documentation or appearance for an EUO are unpreserved and, in any event, unsupported.”

Certain defense attorneys have tried to use the bootstrap method to establish timeliness.  I never bought it.

(3)  “The court erred in denying plaintiff’s motion for a default judgment against Bellevue on the ground that the motion did not contain any letter reflecting that Bellevue’s EUO transcript was sent to her for signature. The motion does contain such a letter, dated March 14, 2016, as well as a follow-up letter, dated April 20, 2016, and accompanying affidavits of service. As the failure to submit to an EUO and “subscribe the same” violates a condition precedent to coverage (see 11 NYCRR 65-2.4), plaintiff provided adequate proof of its claims against Bellevue (see DTG Operations, Inc. v Park Radiology, P.C., 2011 NY Slip Op. 32467, *5-6 ”

This should worry anyone because I highly doubt that DFS (absent a Thrasher showing) ever advocated for a voiding of the policy due to the failure to sign a transcript.  I see a circular letter coming on this issue, similar to when DFS issued a circular letter to overturn Soundshore.

Related Articles

• Understanding New York No-Fault Insurance EUO Requirements: Why DFS Does Not Approve Improper Disclaimers
• Proof insufficient to comply with 65-3.5(b), 65-3.6(b)
• EUO no-show: Declaratory Judgment substantiated
• DJ went south
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2018 post, the no-fault regulations under 11 NYCRR 65-3 have been subject to multiple amendments, particularly regarding EUO notice requirements and timeliness provisions in sections 65-3.5 and 65-3.6. Additionally, procedural requirements for default declaratory judgments under CPLR 3215 may have been refined through subsequent case law and rule modifications. Practitioners should verify current regulatory provisions and recent appellate decisions when advising on EUO compliance and declaratory judgment procedures.