Post-EUO Verification Demands and the 120-Day Rule: State Farm v Burke Physical Therapy

The 2022 decision in State Farm v Burke Physical Therapy denied the insurer summary judgment on its verification-based declaratory claim. It did not establish a statewide ban on post-EUO document requests. Later appellate decisions address both the scope and timing of those requests.

Legal Update (September 2026): The 2022 uncertainty is no longer the complete account. Burke (2025) addresses licensing-related documents; Gepp (2025) addresses agreed post-EUO verification. Timing and reasonable justification remain separate, fact-specific questions.

Last reviewed: September 2026. Original publication date retained.

What happened in Nassau County in 2022

Burke appeared for an examination under oath in September 2018. State Farm then requested extensive corporate and financial documentation, including tax and bank records, management arrangements and leases. Burke objected in writing; State Farm defended the requests and later denied the disputed claims.

Justice Erica Prager’s February 25, 2022 decision focused on whether Burke’s written justification could be found unreasonable as a matter of law. The court considered the precise entitlement question unsettled on the authorities presented and held that State Farm had not established its right to summary judgment. It allowed amendment of the complaint, but did not grant the requested declaration of nonliability.

The decision expressly left State Farm free to seek discovery in that action and litigate its licensing-compliance theory. Neither the provider’s eligibility nor the ultimate validity of every bill was finally resolved. Jason’s original reaction below belongs to that procedural moment.

What the later appellate cases add

The February 2025 Burke decision, 85 Misc 3d 130(A), upheld dismissal in a separate provider action. It held that requests for management agreements, W-2 forms, business-related bank records and leases were not improper when directed to whether the provider met licensing requirements. An affidavit saying the provider responded to the extent requests were proper and records were possessed did not establish production or reasonable justification.

The court also explained that denial of summary judgment in the Nassau declaratory action was not a final merits determination with preclusive effect in that case. The May 2025 Burke decision repeated the document-scope and preclusion points. These are later decisions in other actions, not an appellate reversal of the February 2022 order.

Timing is a separate limit. In Burke, 83 Misc 3d 41 (2024), the Appellate Term held that the toll created by the EUO request did not extend the period for making otherwise untimely original requests. On that record, the EUO completed the timely requested verification, and the new documentary requests did not establish a continuing toll. Neither side obtained summary judgment.

Then Nationwide Affinity v Gepp, 234 AD3d 1320 (4th Dept 2025), upheld post-EUO requests under specific facts: the representatives lacked necessary knowledge, and counsel agreed to written demands and responses instead of further examinations. The providers could not agree to that course and then reject it categorically. They also failed to justify withholding other proper information.

Why the transcript and correspondence matter

Read the EUO transcript before calling a later letter an entirely new demand or merely a follow-up. What was asked? What was answered? Was a better-informed witness needed? Did counsel agree that identified questions would be answered through documents? The answer can distinguish a completed examination from agreed continuing verification.

Trial courts have also applied these authorities differently to different records. Pedro Torres-Jimenez (January 2026) distinguished Gepp’s agreement; Medical Supply Depot (August 2026) found continuing verification proper after an incomplete EUO. Neither trial decision creates a blanket statewide answer.

The comparison with Sound Shore is useful: a timing argument needs the underlying documents and proved receipt dates. The remote-practice note addresses preserving those records when the work happens electronically.

The 120-day rule has conditions

Under § 65-3.5(o), the applicant must supply requested verification within its possession or control, or written proof of reasonable justification, within the qualifying period. The insurer’s request must carry the required warning. Prescribed NF forms, medical examinations and EUO requests themselves are excluded from that subdivision.

A demand for documents following an EUO must therefore be evaluated as a document request, not treated as if the examination itself has a 120-day attendance deadline. The 2026 Chapa guide addresses the separate denial-timing question.

Frequently Asked Questions

What is the 120-day rule in New York no-fault insurance?

For qualifying verification, it requires production of material within the applicant’s possession or control or written reasonable justification. Required notice and stated exclusions matter; it is not an automatic forfeiture rule for every request.

Can a medical provider object to a no-fault carrier’s verification demands?

Yes, but an objection needs a supported reason. The 2022 Burke order did not decide every future request; later appellate cases approved specified licensing-related requests and rejected insufficient responses.

Does an EUO request toll the carrier’s time to pay or deny a claim?

A timely, proper request can. Whether a later documentary request continues the toll depends on the chronology and record, including what occurred or was agreed at the examination.

Original commentary preserved from the archive

The provider goes to the EUO and gets bombarded with post EUO demands that are the functional equivalent of a proctology examination. Provider objects, 120-days pass and the disclaimer is issued. Is that disclaimer valid?

The Court struggled with this one and said this cannot be answered at the summary judgment stage.

Do not ask me for an opinion. I understand what the carrier is trying to do, and it falls within the literal context of the regulations. Yet, are these demands better propounded as discovery demands in the context of litigation or arbitration? At what point is the verification protocol abused or do the equities fall in favor of casting the verification demands as discovery devices better suited during the dispute resolution phase of the claim?

Connect to the Encyclopedia

• Verification and the 120-day rule: current guide and case directory
• Compas v Travelers: partial responses and contemporaneous objections
• Sound Shore: the earlier hospital form and the request timeline
• Orthoplus: incomplete production and authorized counsel
• Compas v Praetorian: an owner’s affidavit and a split result
• Remote practice in 2020: preserving the underlying claim records

For review of a particular claim or verification dispute, contact the firm. Please use the initial message to describe the issue without sending medical records or other sensitive documents.