Untimely Follow-Up EUO Letters: The 10-Day Rule in New York No-Fault Cases

In New York’s no-fault insurance system, insurance companies frequently request Examinations Under Oath (EUOs) as part of their verification process when investigating claims. These examinations allow insurers to question claimants or healthcare providers under oath about the circumstances surrounding an accident and treatment. However, the scheduling of these examinations is governed by strict regulatory timelines that insurers must follow precisely — and a follow-up scheduling letter mailed too late can wipe out the entire defense.

The Decision: Restoration Chiropractic v 21st Century

Restoration Chiropractic, P.C. v 21st Century Ins. Co., 2019 NY Slip Op 51961(U) (App. Term 2d Dept, 2019)

” The record establishes that defendant’s follow-up scheduling letter was mailed more than 10 days after plaintiff’s assignor had failed to appear for the first scheduled EUO. As a result, this follow-up scheduling letter was untimely (see 11 NYCRR 65-3.5 ). Consequently, defendant’s motion should have been denied”

The Regulatory Framework: EUOs as Verification

An EUO is a creature of the no-fault regulation, 11 NYCRR 65. When a carrier receives a claim — typically from a medical provider holding an assignment of benefits from the injured person (the “assignor”) — it may demand additional verification before paying or denying, and an EUO is one recognized form of that verification. The examination is conducted under oath, transcribed, and functions much like a deposition limited to the claim: the accident, the treatment, the billing, and the provider’s eligibility.

But the verification process is not open-ended. The regulation builds in a tight choreography of deadlines designed to keep claims moving. The carrier must request verification promptly after receiving the claim, and — critically here — when requested verification is not received, the regulation requires a follow-up. For appearance-based verification like an EUO or an independent medical examination (IME), the case law applies the same discipline to rescheduling: when the claimant or assignor fails to appear at the first scheduled examination, the carrier must mail its second scheduling letter within 10 calendar days of the no-show.

Miss that window and the second letter is untimely. An untimely second letter means the carrier never properly completed its verification demand, which in turn means it cannot establish the failure-to-appear defense — the defense that the claimant breached a condition precedent to coverage by skipping two duly scheduled examinations.

Why the Carrier’s Motion Failed

In Restoration Chiropractic, the carrier moved for summary judgment on the strength of the assignor’s two non-appearances. The record showed, however, that the follow-up scheduling letter went out more than 10 days after the first missed EUO. The Appellate Term held the follow-up letter untimely under the regulation and ruled that the carrier’s motion “should have been denied.”

Note what the court did not say: it did not question that the assignor failed to appear, and it did not reach the merits of the underlying claim. The defense collapsed purely on calendar math. That is the defining feature of no-fault verification litigation — timeliness is examined before substance, and a carrier that cannot prove every mailing date in the chain loses the defense regardless of what the EUO might have revealed.

Why This Matters

For carriers and defense counsel: the 10-day follow-up window must be treated as a hard operational deadline, tracked from the date of the missed appearance, with proof of mailing maintained for both scheduling letters. Summary judgment motions on EUO and IME no-show defenses live or die on the documentary timeline, so the moving papers must establish the mailing dates of the initial letter, the date of the first no-show, and a follow-up letter mailed within 10 days.

For medical providers and their counsel: the decision is a checklist for opposing these motions. Before engaging with the substance of a no-show defense, audit the dates. If the second scheduling letter was mailed more than 10 days after the first missed examination, the defense is vulnerable no matter how clean the carrier’s affidavits otherwise appear.

For injured claimants: the case illustrates that the no-fault system’s procedural rules cut both ways. The same regulation that imposes cooperation duties on claimants imposes strict timeliness duties on insurers, and courts enforce both sides of the bargain.

Practical Takeaways

• Calendar the follow-up EUO letter immediately upon a no-show; the 10-day clock runs from the missed appearance date.
• Build motion papers around the complete mailing chain — initial letter, no-show date, timely second letter, second no-show, and denial.
• When opposing a no-show defense, scrutinize the gap between the first missed examination and the second letter before anything else.

Related Resources

• EUO requirements in New York no-fault insurance cases — the firm’s cluster hub on examination under oath law
• The firm’s Legal Encyclopedia — plain-language explainers on New York no-fault doctrine
• No-fault insurance defense practice
• An EUO defense that was precluded
• The application of the 10-day follow up period to send EUO requests
• Timely EUO letters
• Verification non-receipt issues