Duly Scheduled Examinations Under Oath: Rescheduled EUOs and the Two No-Show Rule

Key Takeaways

• In Maiga Prods. Corp. v Unitrin (App. Term 2d Dept. 2017), the carrier lost summary judgment because its papers showed only one unrescheduled failure to appear — not the required two duly scheduled EUOs.
• When an EUO is rescheduled at the claimant’s request, the missed date generally does not count as a no-show; the carrier’s two-strike clock effectively resets.
• The open question: at what point may a carrier refuse consent to yet another rescheduling, and is that refusal tested for reasonableness?
• Stracar suggests willful, unexcused noncompliance with EUO demands forfeits coverage — but the line between “rescheduled” and “failed to appear” remains treacherous.

The examination under oath is one of the most powerful verification tools in the no-fault regulation — and one of the easiest defenses to fumble on paper. Maiga Prods. Corp. v Unitrin shows how the innocent-sounding word “reschedule” can dismantle the carrier’s proof.

The Decision

Maiga Prods. Corp. v Unitrin Auto & Home Ins. Co., 2017 NY Slip Op 50113(U)(App. Term 2d Dept. 2017)

“In papers submitted in support of defendant’s cross motion, it was alleged that defendant had requested that the assignor appear for scheduled EUOs and that, although several EUOs had been rescheduled at the request of the assignor’s attorney, the assignor had ultimately failed to appear at the EUO scheduled on August 28, 2012, which EUO had not been rescheduled. Defendant’s papers further stated that defendant had subsequently mailed a denial of claim form to plaintiff which denied plaintiff’s claim on the ground that its assignor had failed to appear at EUOs. Inasmuch as defendant’s papers did not establish that plaintiff’s assignor had failed to appear for two duly scheduled EUOs, the Civil Court correctly found that defendant had failed to establish its entitlement to summary judgment dismissing the complaint”

That word: “reschedule.” I never had so much trepidation when I encountered that word until recently. Assume EIP attorney states that client cannot attend and continues to make this statement. At what point can that carrier say it is not on consent? That fact pattern is looming. And assuming that a carrier has the right to state the reschedule is not on consent (which the carrier does I think in light of Stracar), does the failure to give consent contain a reasonableness prong? In IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 AD3d 1005 (2d Dept. 2014), where the Court stated: “In view of the assignees’ unexcused and willful failure to comply with the demands for examinations under oath, and the lack of evidence of partial performance, the Supreme Court, upon renewal, should have unconditionally awarded summary judgment to the plaintiff.”

Ponder that.

The Legal Framework: EUOs as a Condition Precedent

The mandatory personal injury protection endorsement (11 NYCRR 65-1.1) requires the eligible injured person — and, through the assignment, the billing provider — to appear for examinations under oath “as may reasonably be required.” Appearance is a condition precedent to the insurer’s liability on the policy. A breach means the policy does not cover the claim at all, which is why EUO and IME no-show defenses occupy such a privileged position in no-fault litigation.

But the courts police the carrier’s side of the bargain strictly. To win on the defense, the carrier must prove: (1) two EUO scheduling letters were timely and properly mailed; (2) the claimant failed to appear on both duly scheduled dates; and (3) a denial asserting the no-show defense was timely issued.

Where “Reschedule” Breaks the Chain

Maiga v Unitrin turned on element (2). The carrier’s own papers conceded that several EUOs “had been rescheduled at the request of the assignor’s attorney.” Only the final date — August 28, 2012 — went forward without rescheduling, and the assignor missed it. One unrescheduled failure to appear is not two. A missed date that the parties agreed to adjourn is not a “failure to appear” at a duly scheduled examination; it is a consented postponement, and it drops out of the count.

That rule makes practical sense — claimants should not forfeit coverage for adjournments the carrier granted — but it creates a strategic problem the post identifies. A claimant’s attorney who requests rescheduling after rescheduling can run the verification process in circles. At some point the carrier must be entitled to say: this adjournment is not on consent, the date stands, and a non-appearance counts. Stracar’s language about “unexcused and willful failure to comply” supports that endpoint. What remains unsettled is whether the carrier’s refusal to consent is measured against a reasonableness standard.

Why This Matters for Carriers and Claimants

For carriers and defense counsel, the drafting lesson is to control the record. Scheduling letters and follow-ups should state expressly whether an adjournment is granted, on whose request, and that the rescheduled date replaces the prior one. The motion papers must then walk through two specific dates, each duly scheduled, each missed.

For providers and claimants’ counsel, Maiga confirms that a documented adjournment request is meaningful protection. But the Stracar shadow is real: a pattern of requests with no actual appearance, and no partial performance, reads as willful noncompliance and can produce an unconditional forfeiture of coverage.

Practice Pointers

• Count to two before moving. If any missed date was rescheduled — at anyone’s request — it likely does not count.
• Paper every adjournment. State in writing whether the new date is on consent and that the old date is superseded.
• Carriers drawing the line: say so explicitly before the date, and be prepared to justify the refusal to adjourn as reasonable.
• Remember the mailing proof for each scheduling letter and the denial; the no-show defense fails on service gaps as often as on scheduling gaps.

Frequently Asked Questions

How many missed EUOs does an insurer need before denying a no-fault claim?

Two. The carrier must prove the claimant failed to appear at two duly scheduled examinations under oath. A date that was adjourned or rescheduled on consent generally does not count as a failure to appear.

Does a rescheduled EUO count as a no-show?

Ordinarily, no. If the examination was rescheduled — particularly at the claimant’s request and with the carrier’s consent — the missed original date drops out of the analysis, as the carrier in Maiga v Unitrin learned.

Can a carrier refuse to reschedule an EUO?

The carrier has strong footing, after IDS v. Stracar, to treat continued unexcused non-appearance as willful noncompliance that forfeits coverage. Whether a refusal to consent to another adjournment must also be “reasonable” is the open question this post flags.

Related Resources

• EUO requirements in New York no-fault insurance cases — the firm’s cluster hub
• The firm’s Legal Encyclopedia
• Our no-fault defense practice
• Understanding IME No-Shows in New York No-Fault Insurance Cases
• Triable issue of fact as to non-appearance?
• A court in Nassau has applied Unitrin through a front door and back door channel
• IME No Show: Understanding Confusing Court Interpretations of Duplicate Mailing Requirements
• New York No-Fault Insurance Law