360 Wellness PT PLLC v State Farm Ins. Co. (2026 NY Slip Op 26206)

Reported in New York Official Reports at 360 Wellness PT PLLC v State Farm Ins. Co. (2026 NY Slip Op 26206)

Civil Court of the City of New York, Bronx County

Decided on November 6, 2026

Index No. CV-719762-24/BX

Eric J. Wursthorn, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Notice of Motion and Affidavits /Affirmations annexed 1

Answering Affidavits/ Affirmations 2

Reply Affidavits/ Affirmations 3

In this action, plaintiff 360 Wellness PT PLLC (“360 Wellness”), as assignee of Lidio Hinojosa (sometimes “assignor” or “claimant”), seeks reimbursement from defendant State Farm Insurance Company (“State Farm”) for medical services under New York No-Fault Law. State Farm now moves for summary judgment (motion sequence 1), arguing that Hinojosa’s failure to appear at a continued examination under oath (“EUO”) warrants dismissal (CPLR 3212). 360 Wellness opposes the motion and cross-moves for partial summary judgment in its favor (motion sequence 2).

State Farm denied plaintiff’s bills at issue after plaintiff’s assignor failed to appear at two duly scheduled continued EUOs following an initial incomplete EUO. The principal issue in this case is whether the defendant has set forth the “specific objective justification” for the continued EUOs under 11 NYCRR 65-3.5(e), as part of this motion, as is its burden in the First Department (see Country-Wide Ins. Co. v Alicea, 214 AD3d 530 [1st Dept 2023]; Country-Wide Ins. Co. v [*2]Delacruz, 205 AD3d 473 [1st Dept 2022]).

On this record, the Court finds defendant has met its burden. At the initial EUO, defense counsel stated the basis for the continued EUO, and the assignor’s representative acknowledged and agreed to a continuance. Thus, whether the subsequent scheduling letters set forth a sufficient basis for the continued EUO within the four corners of each document is of no moment. This result is consistent with DFS guidance which does not require insurers to disclose the reasons for a requested EUO to the assignor and/or assignee when the EUO is requested (OGC Op. No. 06-12-16) and the First Department’s rationale of Alicea and Delacruz which requires insurers reveal their reasons so that the assignee/assignor can oppose the motion on such grounds.

For the reasons that follow, defendant’s motion is granted and plaintiff’s cross motion is denied.

Relevant facts

On February 7, 2024, Hinojosa was allegedly injured in an automobile accident. 360 Wellness provided physical therapy to Hinojosa on May 8, 2024, May 30, 2024, June 3, 2024, and June 17-18, 2024, billing State Farm $639.85 in total.

In a letter dated May 6, 2024, defendant’s counsel contacted Abrams & Associates, P.C. (“A&A”), counsel for Hinojosa, and requested that Hinojosa appear for an EUO on May 29, 2024. Hinojosa appeared for an initial EUO on May 29, 2024 via videoconference and testified with the assistance of a Spanish language interpreter. At the end of the four-hour session, David L. Kowzun, Esq., defense counsel, requested a continued EUO because he was unable to question Hinojosa regarding the accident and subsequent treatment in the time allotted.

Additionally, defense counsel indicated that the parties had agreed to end the EUO at 4 PM and that although Hinojosa was supposed to take a twenty-minute lunch break, that break “stretched over 50 minutes” (see Defendant’s Exhibit J, p. 79, NYSCEF Doc. No. 30). Neither Hinojosa nor his representative, Ellen Kogan, a paralegal from A&A, raised any objection to a continued EUO at that time and in fact agreed to a continuance. (A&A appeared for the claimant; plaintiff provider is represented separately.)

Specifically, the May 29, 2024 transcript reveals the following exchange:

“Mr. Kowzun: We’re going to get into the point where we describe where the accident happens and I’m sure I’m going to get a long narrative on this. So I think we should end this now and regroup at a later time to go through the accident and the treatment.

Just off the record.

(Whereupon, brief discussion was held off the record.)

Mr. Kowzun: We agreed to end the EUO today at 4:00. Originally the claimant was going to take a 20-minute lunch break. That stretched over 50 minutes. There was no way we would be able to finish this today.

So we decided to hopefully reconvene this at a later date to go over the medical and treatment and the like, since we’ve already gone through all the residency issues and the like. So hopefully we’re all in agreement to do this, reconvene at a later date to finish the rest of this.

Ms. Kogan: Okay.”

(see Defendant’s Exhibit J, pp. 79-80, NYSCEF Doc. No. 30).

Thereafter, defendant mailed EUO continuation notices dated June 7, 2024, and June 27, 2024, scheduling continued EUOs for June 27, 2024, and July 25, 2024. Defendant’s EUO scheduling letters stated: “[a]lthough the Examination Under Oath was held on May 29, 2024, a continuance is needed.”

Marlin Sierra, another paralegal from A&A emailed defense counsel on June 26, 2024 stating that Hinojosa “won’t be able to make it” to the June 27, 2024 EUO, without explanation and without offering alternative dates (see defendant’s Exhibit L, NYSCEF Doc. No. 32). Hinojosa did not appear on June 27, 2024.

On July 24, 2024, Sierra responded to a status inquiry from defense counsel by stating that she “can’t locate” the assignor and that the EUO “won’t be able to proceed.” No rescheduling request was made, and Hinojosa again did not appear on July 25, 2024.

State Farm issued a global denial dated August 14, 2024 based on the two EUO non appearances.

Parties’ arguments

Defendant argues that it properly denied plaintiff’s claims based on Hinojosa’s failure to appear at two properly scheduled EUOs. Plaintiff does not dispute the non appearances but argues that the EUO requests lacked “good reasons”, that “[t]he reason for an EUO request is information that is essential to justify opposition to the Defendant’s motion” and thus summary judgment is premature, and that communications before the EUOs excused Hinojosa’s failure to appear. Plaintiff also cross moves for partial summary judgment, arguing that defendant’s admissions in its moving papers establish plaintiff’s prima facie case.

Discussion

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Ayotte v Gervasio, 81 NY2d 1062 [1993]).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). The court’s function on these motions is limited to “issue finding,” not “issue determination” (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

Reasonable justification for EUO

EUOs are part of an insurer’s entitlement to “additional verification” following receipt of statutory claim forms (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 793 NYS2d 661, 662 [App Term 2d Dept, 11th & 13th Jud Dists 2004], affd in part 35 AD3d 720, 827 NYS2d 217 [2d Dept, 2006]; see also 11 NYCRR 65-1.1 [d]; 65-3.5 [d]). A request for an EUO “must be based upon the application of objective standards so that there is a specific objective justification supporting the use of such examination” (11 NYCRR 65-3.5[e]). Insurers must maintain standards for determining when EUOs will be requested, and “such standards are [*3]required to be made available for review by [DFS] examiners” (OGC Opinion No. 06-12-16).

It should be noted at the outset that there is a split between the First and Second Departments about an insurer’s burden of proof on a summary judgment motion based upon EUO no-show. In the First Department, summary judgment should be denied as premature under CPLR 3212(f) when an insurer moves based upon EUO no-show but fails to set forth the specific objective justification for the EUO within its motion papers (see e.g. Country-Wide Ins. Co. v Alicea, 214 AD3d 530 [1st Dept, 2023]; Country-Wide Ins. Co. v Delacruz, 205 AD3d 473 [1st Dept, 2022]; Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671 [1st Dept, 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept, 2015]; see also Kemper Independence Insurance Company v. Accurate Monitoring, LLC, 73 Misc 3d 585, fn 5 [Sup Ct, NY Co. 2021] [J. Lebovits, G.]). The First Department has explained that the insurer’s reasons for the EUO are essential for the assignor and/or assignee to oppose the insurer’s motion for summary judgment. (Id.) Compare that to Second Department caselaw where no such showing is required (see e.g. Interboro Insurance Company v. Clennon, 113 AD3d 596 [2d Dept 2014]; IDS Property Casualty Insurance Company v. Starcar Medical Services P.C., 116 AD3d 1005 [2d Dept 2014]).

Here, there is no dispute that the defendant has not provided a specific objective justification for the initial EUO. Defense counsel’s May 6, 2024 letter merely asked Hinojosa to appear. However, Hinojosa did appear at the initial EUO on May 29, 2024. The parties have not identified, and the Court’s research has not disclosed, any controlling authority addressing whether an insurer must establish a specific justification for an EUO that was completed without objection and is not the basis for the denial at issue. However, since the initial EUO is not an issue in this case, the Court need not determine whether State Farm possessed a specific objective justification for the initial EUO because the denial was not predicated upon the assignor’s failure to appear at that examination, and the assignor did in fact appear.

Here, defendant’s letters scheduling the continued EUO dated June 7, 2024 and June 27, 2024 state “[a]lthough the Examination Under Oath was held on May 29, 2024, a continuance is needed” (see defendant’s Exhibits K & N). The Office of General Counsel for DFS (f/k/a New York State Insurance Department) issued an opinion on December 22, 2006 that an insurer need not include in a notice scheduling an EUO the specific reason why the EUO was requested, stating that neither 11 NYCRR 65-3.5[e] nor any other provision of No-Fault Regulation 68 “requires an insurer’s notice scheduling an EUO to specify the reason(s) why the insurer is requiring the EUO” (OGC Opinion No. 06-12-16). Nor is the insurer required to include the reason for the EUO when the insurer issues a denial of benefits based upon the failure of an assignor or assignee to appear at an EUO (see Flow Chiropractic, P.C. v. Travelers Home and Marine Ins. Co., 44 Misc 3d 132[A] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; see also Alsaad Medical, P.C. v. State Farm Mut. Auto. Ins. Co., 71 Misc 3d 1230[A] [Civ Ct, Bronx Co]).

Before State Farm sent the continued EUO scheduling letters, defense counsel put both Hinojosa and his representative on notice of the specific objective justification for the continued EUO at the initial EUO as defense counsel stated he was unable to question Hinojosa regarding the accident and subsequent treatment in the time allotted. The transcript shows that the basis for the continuation arose from the course of the EUO itself, the length of the break, the parties’ agreed stopping time, and the fact that the examination had not yet reached the accident or treatment issues. The parties had a pre-existing agreement to end the session at 4 PM, and [*4]defense counsel documented these circumstances contemporaneously, stating: “There was no way we would be able to finish this today.”

No testimony during the initial EUO was taken regarding the accident or any medical treatment. Immediately before adjourning, defense counsel stated: “We’re going to get into the point where we describe where the accident happens So I think we should end this now and regroup to go through the accident and the treatment.” These circumstances left no opportunity to reach verification topics regarding accident causation and medical treatment, presenting an objective circumstance necessitating further verification and rendering a continuation reasonable and necessary. These real-time conditions, evident on the face of the transcript, constitute the “specific objective justification” contemplated by 11 NYCRR 65-3.5(e). Thus, the objective basis for the continuation was not merely described abstractly in a scheduling letter; it was presented, observed, and acknowledged by the assignor and his representative during the initial EUO.

Additionally, the transcript confirms that the reasons for the continuation were communicated to the assignor and his representative on the record. When defense counsel articulated the reasons necessitating continuation and asked, “So hopefully we’re all in agreement to do this,” Kogan responded, “Okay.” Given that she had actively participated throughout the four hour EUO, reading documents aloud for the witness, clarifying interpretations, and interjecting as needed, her failure to voice any objection or reservations cannot be characterized as passive silence. It was an affirmative acceptance of the continuation request placed on the record, after full explanation of why additional time was needed. On this record, plaintiff cannot credibly dispute that the basis for the continuation was communicated to and understood by the assignor and his representative at the time the continuance was requested.

Thus, the Court finds that State Farm has satisfied its burden because the transcript itself constitutes documentary proof of the specific objective justification for the continued EUO. Unlike Alicea and Delacruz, where the insurer failed to identify any specific objective justification for the requested EUO, the justification here appears on the face of the transcript and arises directly from the incomplete examination itself.

Accordingly, defendant has provided the required specific objective justification under 11 NYCRR 65-3.5(e).

Assignor’s failure to appear

“The failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage” (Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 470 [1st Dept, 2016] [internal citations omitted]). “[A] defendant-insurer [makes] a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for examinations under oath (EUOs) to plaintiff’s assignor, and that the assignor failed to appear” (Seacoast Med., P.C. v Praetorian Ins. Co., 967 NYS2d 870, 870 [1st Dept, 2012]; see also Unitrin Advantage Ins. Co. v. Dowd, 194 AD3d 507, 508 [1st Dept 2021]). After reviewing the evidence, the Court finds that defendant has established its prima facie case through the submission of the EUO scheduling letters, denials, statements on the record, and the affirmations of mailing and non-appearance attached to its motion.

Plaintiff argues that its assignor’s non-appearance at the continued EUOs scheduled for June 27, 2024 and July 25, 2024 should be excused due to the parties’ pre-EUO communications. [*5]This argument is unavailing. Plaintiff cites Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 2015 NY Slip Op 50701] [U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists, 2015] and argues that Hinojosa’s absence at the June 27, 2024 EUO should be excused because a request to reschedule was made. However, plaintiff’s reliance on Avicenna is misplaced. Unlike here, the EUOs in Avicenna were “mutually rescheduled prior to the appointed time” (Avicenna, at 2) [emphasis added]. Here, Sierra, another A&A paralegal, emailed defendant on June 26, 2024, the day before the scheduled EUO, stating “[w]e need to reschedule my client won’t be able to make it that day”. Sierra did not provide a reason why Hinojosa could not appear, nor did Sierra offer any alternative dates for a rescheduled EUO. This unilateral demand made one day before the scheduled EUO is patently distinguishable from mutually rescheduling an EUO like in Avicenna.

Sierra’s second email on July 24, 2024 in response to defense counsel’s status request for the July 25, 2024 continued EUO simply stated: “can’t locate the client he doesn’t answer at all” and that it “won’t be able to proceed with the EUO tomorrow” (see Defendant’s Exhibit O, NYSCEF Doc. No. 35). Sierra did not offer how or when it attempted to contact Hinojosa, nor did Sierra request that the EUO be rescheduled. Such vague and untimely assertions do not constitute reasonable justification under the regulations. Moreover, the statement that Hinojosa “doesn’t answer at all” reasonably supports the conclusion that Hinojosa did not intend to appear for the continued EUO.

Both of the emails from Sierra were sent only one day before the scheduled EUO dates, despite defendant’s notices having been mailed nearly one month prior to each EUO. The Court also notes that these “requests” were made only after A&A (on behalf of the assignor) was contacted by defendant for confirmation of Hinojosa’s appearance. Additionally, plaintiff did not offer to defendant any alternative dates/times that would be “reasonably convenient to the applicant” (11 NYCRR 65-3.5[e]). For the reasons set forth above, 360 Wellness fails to rebut State Farm’s prima facie case by submitting evidence of a reasonable justification for its assignor’s failure to comply with two properly scheduled EUOs.

For all these reasons, State Farm is entitled to summary judgment dismissing plaintiff’s complaint in its entirety.

Accordingly, it is hereby

ORDERED that defendant’s motion for summary judgment is granted; and it is further

ORDERED that plaintiff’s cross motion for summary judgment is denied; and it is further

ORDERED that plaintiff’s complaint is dismissed in its entirety and the Clerk is directed to enter judgment accordingly.

Any requested relief not expressly addressed herein has nonetheless been considered and is hereby denied.

This constitutes the Decision and Order of the Court.

Date 11/6/2026

Hon. Eric J. Wursthorn

Civil Court Judge (NYC)