Legal Questions

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

The decision rules on whether the insurer proved the elements of the defense that the injured person or provider failed to appear for an independent medical examination (IME) or examination under oath (EUO): (1) the scheduling letters (initial and follow-up) were mailed to the right person and address; (2) the person did not appear (or appeared and refused to answer), shown by someone with personal knowledge; (3) where the court requires it, the requests complied with 11 NYCRR 65-3.5/65-3.6 (15 business days to request, IME held within 30 days, follow-up within 10 days of a nonappearance, so at least two scheduled exams; in the First Department, a specific objective justification for an EUO under 65-3.5 (e)) or were exempt because sent before the claim was received; and (4) any answer by the claimant: excuse, mutual rescheduling, objection, unreasonableness of the request. It covers summary judgment motions and cross motions, oppositions, trials, default declaratory judgments (CPLR 3215 [f]) and de novo actions after master arbitration.

Settled at the Appellate Division, no conflicting department. No Court of Appeals decision on the elements. The core elements are the same wherever an Appellate Division has spoken: the insurer must prove mailing of the scheduling letters and the nonappearance by someone with personal knowledge (2d Dept Stephen Fogel 2006; 1st Dept Lucas 2013), and that the requests were timely and properly made, with at least two scheduled exams (1st Dept Unitrin 2011, Longevity 2015, Allstate v Pierre 2014; 2d Dept Interboro v Clennon 2014, Nationwide Affinity v George 2020, Quality Health 2023). Two sub-points differ: (1) the First Department requires the insurer to disclose a specific objective justification for an EUO (65-3.5 [e]) or summary judgment is premature (Jaga 2015, Kemper v AB Med 2020, Delacruz 2022, Alicea 2023, Lifeline 2025), while the Appellate Term, Second Department holds objective reasons are not part of the insurer's prima facie case (e.g. 11374, Northern Med. Care 2024); the Second Department Appellate Division has not ruled on it in this database; (2) whether the no-show defense needs a timely denial is a true split, but that is the sister topic no-show-coverage.

Leading authorities · Authority map · Decisions by court · Plain-text version (Markdown)

Leading authorities

  • Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) Appellate Division, Second Department, 2006Insurer must prove mailing and nonappearance by personal knowledgeAn insurer moving on an IME no-show must establish prima facie that it mailed the IME notices and that the person failed to appear; affidavits from no one with personal knowledge of the mailings or the nonappearances fail, and the motion is denied regardless of the opposition. Appearance at IMEs requested before or after the claim form is a condition precedent to coverage.
    Progressive was required to establish, prima facie, that it mailed the notices of the IMEs to Kim and that he failed to appear for the IMEs. Progressive failed to meet its burden by proof in admissible form, because it submitted no evidence from anyone with personal knowledge of the mailings or of the nonappearances
  • Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Appellate Division, First Department, 2011First Department: requests must follow regulatory time frames; no willfulness neededThe insurer met its prima facie burden by showing it requested the IMEs in accordance with the procedures and time frames of the no-fault regulations and that the assignors did not appear; the providers raised no issue that the requests were unreasonable, and the insurer did not have to show the nonappearance was willful.
    Plaintiff satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants’ assignors did not appear. In opposition, defendants failed to raise an issue of fact that the requests were unreasonable
    Later history: lv denied 17 NY3d 705 (2011), as cited in later decisions in the database (e.g. American Tr. Ins. Co. v Lucas, post 6526)
  • Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) Appellate Division, Second Department, 2014Second Department elements: two demands, two nonappearances, timely denialThe insurer established prima facie entitlement to a declaration of no coverage by showing it twice duly demanded an EUO, the assignor twice failed to appear, and it timely denied the claims; the providers raised no triable issue on the propriety of the demand or on whether the assignor appeared.
    the plaintiff insurer established as a matter of law that it twice duly demanded an examination under oath from the appellants’ assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the plaintiff issued a timely denial of the claims arising from the appellants’ treatment of the assignor
  • Country-Wide Ins. Co. v Delacruz (2022 NY Slip Op 03068) Appellate Division, First Department, 2022First Department: insurer must disclose EUO's specific objective justificationSummary judgment for the insurer was properly denied as premature because it never provided a specific objective justification for the EUO (11 NYCRR 65-3.5 [e]); without it the insurer did not establish compliance with the regulations, and the providers did not waive the point by failing to object on receipt of the notices.
    Plaintiff failed to provide a specific objective justification for requesting the examination under oath (EUO). Plaintiff’s reason for the EUO is essential for defendants to oppose plaintiff’s summary judgment motion and this fact is exclusively within the knowledge and control of the movant
  • American Tr. Ins. Co. v Longevity Med. Supply, Inc. (2015 NY Slip Op 06761) Appellate Division, First Department, 2015Timely IME scheduling (65-3.5 [d]) is part of prima facie caseAlthough the insurer proved the IME notices were mailed and the claimant did not appear, it failed to show the IMEs were scheduled within the 30-day frame of 11 NYCRR 65-3.5 (d); that proof is part of its prima facie case and cannot be supplied in reply (Friedman, J.P., dissented).
    Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Estrella did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5 (d), which prescribes a 30-calendar-day time frame for the holding of IMEs
  • Mapfre Ins. Co. of N.Y. v Manoo (2016 NY Slip Op 04446) Appellate Division, First Department, 2016Pre-claim EUO requests are exempt from verification time framesThe insurer made its prima facie showing by proving timely mailed EUO notices and three nonappearances; the 65-3.5/65-3.6 notification requirements do not apply to an EUO scheduled before the claim form is received, and once the claim arrived the insurer complied with the 65-3.6 (b) follow-up rule by rescheduling within 10 days (with a dissent).
    The notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply to EUOs that are scheduled prior to the insurance company’s receipt of a claim form
  • Nassau Ins. Co. v Murray 46 NY2d 828Presumption of receipt from proof of a standard office mailing practice; mere denial of receipt does not rebut it. Cited for proof that the scheduling letters were mailed (e.g. George 2020, Metro Psychological 2016).Not in our database.
  • Argento v Aetna Cas. & Sur. Co. 184 AD2d 487Failure to submit to an EUO is a material breach precluding recovery; quoted by Interboro v Clennon and Nationwide Affinity v George.Not in our database.
  • Bulzomi v New York Cent. Mut. Fire Ins. Co. 92 AD2d 878EUO noncompliance as material breach; opponent must show reasonable excuse or partial performance (IDS v Stracar 2014).Not in our database.
  • Hospital for Joint Diseases v Nationwide Mut. Ins. Co. 284 AD2d 374Mailing must be proved by someone with personal knowledge of the mailing or office practice; cited in Stephen Fogel and Hertz v Active Care.Not in our database.
  • Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co. 262 AD2d 553Basis of the Appellate Term rule that objections to a verification/EUO request not raised on receipt are not heard; held 'inapposite' to the justification requirement in Country-Wide v Delacruz (1st Dept 2022).Not in our database.

Authority map

Each circle is a decision on this question, placed by court and date; its colour is the position it took. Lines are citations between them. Select a circle (or find a decision by name) to see its links and summary. The same decisions are listed by court below the map.

Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejectedInsurer failed to prove the scheduling letters were mailed or properly addressedInsurer failed to prove the nonappearance by someone with personal knowledgeInsurer did not show its requests met the regulatory timing, follow-up or justification requirementsProof on the no-show raises a question of fact; neither side wins the point as a matter of lawClaimant showed the nonappearance was excused or the request unreasonable or waivedRing: rules on the question, but another ground decided the caseContrasted, distinguished or limitedDeclined to follow, questioned, overruled or reversedCited
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How the rule was applied, by court

Court Defense proved Mailing not proved Nonappearance not proved Requests not compliant Triable issue No-show excusedTotal
Appellate Division, First Department2731170048
Appellate Division, Second Department4300018
Appellate Division, Third Department0100001
Appellate Division, Fourth Department2000002
Appellate Term, First Department476853069
Appellate Term, Second Department474967474185741
Trial courts in the First Department1545150140
Trial courts in the Second Department40125254288

Decisions (997)

Every decision in our database that rules on this question: highest court first, then by department, newest first. 888 turn on it; the others rule on it alongside a different main ground (marked "also decides"). The one-sentence summaries describe what each court said on this question.

How this page is made: the decisions are those in our case-law database that cite this question's leading cases or were tagged with its subject. A language model read each one in full and recorded whether it rules on the question, the position it took and a one-sentence summary; a second, independent reading checked every entry. Court, department, date and the citation links come from the database. Read the decision before relying on it.