EUO No-Show Summary Judgment in New York: Prescribed Forms Are Not Part of the Insurer's Prima Facie Case

In New York no-fault insurance law, when healthcare providers fail to appear for scheduled Examinations Under Oath (EUOs), insurers often seek summary judgment to deny claims. An appellate decision out of the Second Department’s Appellate Term clarifies an important procedural point: insurers don’t need to prove they sent “prescribed forms” when establishing their prima facie case for EUO no-shows.

This ruling addresses a common defense argument that attempts to shift the burden back to insurers by claiming they failed to properly notify providers using required regulatory forms. The court’s decision streamlines the summary judgment process for EUO no-show cases by focusing on the core issue — whether the provider appeared as scheduled.

The Decision

BNE Clinton Med., P.C. v State Farm Mut. Auto Ins. Co., 2021 NY Slip Op 50083(U)(App. Term 2d Dept. 2020)

“Plaintiff’s contention that defendant failed to make a prima facie showing of its entitlement to summary judgment because defendant did not show that it had timely mailed “prescribed forms” upon learning of the accident (see 11 NYCRR 65-3.4) lacks merit, as such a showing is not part of an insurer’s prima facie burden when seeking summary judgment on the ground that a provider or the provider’s assignor failed to appear for duly scheduled EUOs (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ).”

The Legal Background: EUOs and the Prescribed Forms Argument

An Examination Under Oath is exactly what it sounds like: sworn testimony that the no-fault endorsement entitles the insurer to take from a claimant — whether the eligible injured person or the medical provider billing as the patient’s assignee — as a condition of coverage. Appearance at a duly scheduled EUO is a condition precedent to the insurer’s liability on the policy. When the claimant fails to appear twice, the insurer may deny the claims, and the case law treats that breach as a coverage defense.

To win summary judgment on the defense, the insurer’s prima facie showing conventionally consists of: (1) proof that the EUO scheduling letters were properly mailed to the claimant, usually through affidavits describing a standard office mailing practice; (2) proof of the claimant’s failure to appear on both dates, typically from the attorney or representative who was present to conduct the examination; and (3) proof that the claims were denied timely and on that ground.

The “prescribed forms” argument was an attempt to graft a fourth element onto that list. Under 11 NYCRR 65-3.4, an insurer that receives notice of an accident must forward the prescribed application forms (the NF-2 and related paperwork) to the applicant within a set period. Plaintiffs argued that an insurer who could not prove this initial form-mailing had not properly commenced its claims handling, and therefore could not rely on the EUO no-show. Relying on the Second Department’s decision in Interboro Ins. Co. v Clennon, the Appellate Term rejected the argument: compliance with the prescribed-forms requirement is simply not part of the insurer’s prima facie burden on an EUO no-show motion.

Why This Matters

For carriers and defense counsel, the decision removes a layer of collateral litigation. EUO no-show motions already rise or fall on detailed mailing and appearance proof; requiring insurers to also reconstruct the claim-opening paperwork from months or years earlier would multiply affidavits without changing the dispositive fact — the provider did not show up. Keeping the prima facie case focused on scheduling, mailing, non-appearance, and timely denial makes these motions cleaner to assemble and harder to deflect.

For providers, the message is that procedural counterattacks aimed at the carrier’s early claims handling will not defeat a properly supported no-show motion. The productive battlegrounds remain the traditional ones: whether the scheduling letters were actually mailed to the correct address, whether the requests were reasonable in timing and scope, whether the non-appearance proof comes from someone with personal knowledge, and whether the denial issued on time. A provider who has a legitimate objection to an EUO request is far better served by raising it before the scheduled date than by ignoring the request and hunting for technical defenses after suit is filed.

Key Takeaway

When insurers seek summary judgment for EUO no-shows, they don’t need to prove compliance with prescribed form mailing requirements under 11 NYCRR 65-3.4. The court confirmed that demonstrating proper EUO scheduling and the provider’s failure to appear is sufficient for a prima facie case, keeping the focus on attendance rather than administrative paperwork.

Related Resources

• EUO requirements in New York no-fault insurance cases — our EUO cluster hub
• Proof of the no-show
• EUO no-show (case #2)
• EUO no show is unconditional
• The firm’s Legal Encyclopedia of New York no-fault topics
• Our no-fault defense practice