EUOs: No Objective Reasons Required for Summary Judgment, and a Failed Letterhead Attack

Understanding EUO Requirements: Recent New York Court Decisions

Examinations Under Oath (EUOs) play a crucial role in New York No-Fault Insurance Law disputes between healthcare providers and insurers. Two recent appellate court decisions from 2019 provide important clarification on the standards insurers must meet when seeking summary judgment based on EUO non-compliance, and address common procedural issues that arise in these cases.

These rulings are particularly significant for healthcare providers who regularly deal with EUO requests, as they establish clear precedents regarding what insurers must prove to successfully defend denial of claims. Understanding these requirements can help providers better navigate EUO objections and compliance issues that frequently arise in no-fault litigation.

Key Takeaways

• Gentlecare v GEICO: an insurer need not set forth objective reasons for requesting EUOs to make its prima facie case on summary judgment.
• The prima facie showing is three elements: two duly made demands, two failures to appear, and a timely denial.
• Oleg’s Acupuncture v State Farm: a mismatch between the contact name in the EUO letter and the attorney signing the non-appearance affirmation — both at the same firm — raises no triable issue.
• Challenges to the carrier’s reasons for an EUO must be preserved at the claims stage, not invented in litigation.

The Decisions

Jason Tenenbaum’s Analysis:

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2019 NY Slip Op 50759(U)(App. Term 2d Dept. 2019)

” Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an from the … that the provider twice failed to appear and that the issued a timely denial of the claim[]”

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 50760(U)(App. Term 2d Dept. 2019)

“We note that an EUO request letter which lists a contact at defendant’s law firm which is different from the attorney at the same law firm signing the otherwise sufficient affirmation of nonappearance of plaintiff at the duly scheduled EUO does not raise a triable issue of fact.”

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, by extension, a provider standing in the assignor’s shoes — to appear for examinations under oath “as may reasonably be required.” Appearance at a duly scheduled EUO is a condition precedent to coverage. Two failures to appear breach the condition, and a timely denial on that ground defeats the claim in its entirety.

The recurring fight is over the word “reasonably.” Providers have long argued that a carrier moving for summary judgment should have to demonstrate an objective, claim-specific justification for demanding an EUO in the first place. Gentlecare rejects that position at the prima facie stage: the carrier’s moving papers need only establish the two demands, the two no-shows, and the timely denial. The reasonableness of the request is not an element the insurer must plead and prove up front.

That does not make reasonableness irrelevant forever — it makes it the objector’s burden, raised at the right time. A provider that appears, or that timely objects to the EUO demand during the claims process, preserves the issue. A provider that simply ignores the letters and then demands justification in litigation gets the Gentlecare answer. The related principle that an objective standard is not necessary runs through the subsequent case law.

The Letterhead Argument That Went Nowhere

Oleg’s Acupuncture disposes of a narrower but frequently recycled argument. The EUO scheduling letter told the provider to contact one person at the defense firm; the affirmation of non-appearance was signed by a different attorney at the same firm. The plaintiff argued the discrepancy created a triable issue about whether the EUO was duly scheduled or the no-show properly witnessed.

The Appellate Term said no. An internal staffing difference at a single law firm does not undercut an otherwise sufficient affirmation of nonappearance. What matters is that the affirmant can attest, with personal knowledge, that the provider failed to appear at the scheduled time and place. Who was listed as the scheduling contact is administrative detail, not evidence.

Why This Matters for Providers and Carriers

For carriers, these decisions streamline the summary judgment template on EUO no-show defenses: prove proper and timely mailing of two scheduling letters, non-appearance at both through an affiant or affirmant with personal knowledge, and a timely denial. The proof-of-mailing component remains the most common failure point — the standards are collected in the firm’s EUO requirements hub.

For providers, the practical message is to engage with EUO demands in real time. If the demand seems abusive, duplicative, or untethered to the claim, object in writing during the claims process and appear under protest or negotiate scheduling. Sitting silent and attacking the carrier’s motives two years later in the Civil Court is now a losing strategy, and nitpicking the defense firm’s internal contact assignments will not save the case either.

Practice Pointers

• Carriers: keep the EUO scheduling letters, mailing proof, and the non-appearance affirmation consistent on dates, times, and locations. Substance, not letterhead trivia, is what courts examine.
• Carriers: the affirmant should be the attorney present for the scheduled EUO — personal knowledge of the no-show is the load-bearing element.
• Providers: calendar both EUO dates and respond to every letter in writing. Timely objections preserve reasonableness challenges; silence forfeits them.
• Providers: before opposing summary judgment, target the mailing proof and the affirmant’s personal knowledge rather than the carrier’s unexpressed reasons.

Related Resources

• EUO Requirements in New York No-Fault Insurance Cases
• Non objected to EUO
• An objective standard is not necessary
• EUO no-show claims
• The firm’s Legal Encyclopedia
• No-Fault Defense practice

Frequently Asked Questions

Does an insurer have to justify its reasons for demanding an EUO?

Not to win summary judgment. Under Gentlecare v GEICO, the insurer’s prima facie case consists of proof that it twice duly demanded the EUO, that the provider twice failed to appear, and that it issued a timely denial. Objective reasons for the request are not an element of that showing.

What happens if a provider misses two scheduled EUOs?

Appearance at an EUO is a condition precedent to no-fault coverage. Two failures to appear at duly scheduled examinations breach that condition, and a timely denial on that ground will defeat the claim — including in litigation, if the carrier can prove its mailings and the non-appearances in admissible form.

Can a provider challenge an EUO request as unreasonable?

Yes, but timing matters. Objections to the scope or reasonableness of an EUO demand should be raised in writing during the claims process. A provider that ignores the scheduling letters and raises reasonableness for the first time in litigation will generally be held to have forfeited the argument.