The Evidentiary Rules Shaping EUO Non-Appearance Motions

EUO non-appearance summary judgment motions in no-fault follow a straightforward framework—prove mailing, prove non-appearance, prove timely denial. But courts are throwing these motions out on evidentiary gaps that are entirely avoidable. Recent Appellate Term decisions have sharpened the requirements for proving mailing, non-appearance, and timely denial, while a live departmental split on whether insurers must disclose their objective justification for requesting the EUO continues to trip up practitioners on both sides. This post breaks down what the case law now requires and the mistakes that sink otherwise-winning motions.

Proving Mailing and Non-Appearance

An EUO non-appearance motion for summary judgment requires two things: proof that the EUO scheduling letters were properly mailed, and proof that the assignor did not show up. Both elements have been the subject of recent litigation, and the case law now gives clear guidance on what works and what does not.

Mailing: Employee Affidavits on Standard Procedures

The insurer must demonstrate that it timely mailed the initial and follow-up EUO scheduling letters. The standard way to do this is through affidavits of employees describing the company's standard mailing procedures. In John A. Nasrinpay 2 v. State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51833[U], App. Term, 2d Dept.), the court held that "the affidavits of defendant's employees were sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been timely mailed." The affidavits do not need to prove that a specific letter was placed into a specific mailbox. They need to describe a standard office procedure and attest that the procedure was followed in the case at hand.

In the First Department, an attorney affidavit can serve the same function. In Town RX Inc. v. Nationwide Mut. Ins. Co. (2025 NY Slip Op 51853[U], App. Term, 1st Dept.), the court found that the "affidavit of defendant's attorney sufficiently described the standard practices and procedures of his office for mailing EUO scheduling letters," and that counsel "further represented, under penalty of perjury, that he had personal knowledge that the described practices and procedures were followed in this matter." That was enough.

Non-Appearance: Attorney Affirmation Is Sufficient

Proving non-appearance is often where motions fail unnecessarily, because some lower courts have required EUO transcripts or other corroboration. The Appellate Term has now made clear, repeatedly, that an attorney's affirmation alone is sufficient.

In Brefni Chiropractic Diagnostics, P.C. v. State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51518[U], App. Term, 2d Dept.), the Civil Court had denied summary judgment because the insurer did not submit EUO transcripts to corroborate the attorney's affirmation. The Appellate Term reversed. The attorney had affirmed that he was present in his firm's office where the EUOs were scheduled, that he would have conducted or assigned the EUOs had the plaintiff appeared, and that the plaintiff did not appear on either date. That affirmation, "standing alone, was sufficient proof of plaintiff's failure to appear for the EUOs, and . . . submission of the EUO transcripts was unnecessary." The Appellate Term reaffirmed this in GC Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51982[U], App. Term, 2d Dept.), holding that even a three-year lapse between the non-appearance and the attorney's affirmation does not, by itself, create a credibility issue.

Putting it all together, MSB Physical Therapy, P.C. v. Nationwide Ins. (2025 NY Slip Op 50831[U], App. Term, 2d Dept.) affirmed summary judgment where the insurer established all three elements: timely mailing of the scheduling letters, the assignor's failure to appear, and timely denial of the claims after the last no-show.

The Trap: Conclusory Assertions Without Personal Knowledge

Not every affidavit will do. In Fyzio PT, PLLC v. Ocean Harbor Cas. Ins. Co. (2025 NY Slip Op 50103[U], Civ. Ct., Bronx County), the insurer submitted only the affidavit of its claims manager, Joseph Celli, who made "conclusory assertions that claimant failed to appear for the scheduled EUOs." The court found that Celli "fails to attest as to how he is aware of such information and fails to describe a standard business procedure utilized to record the alleged non-appearance." Because he did not demonstrate personal knowledge of office procedures for recording non-appearances, and was not personally present at the EUO location, his assertions were inadmissible hearsay. The motion was denied.

The lesson: the person attesting to non-appearance must have either been present at the scheduled EUO location or must describe a standard procedure for recording non-appearances and attest to personal knowledge of that procedure. A claims manager sitting in a different office who simply states "the claimant did not appear" will not suffice.

The Departmental Split on Justifying the EUO Request

Even when an insurer proves mailing and non-appearance, a separate question lurks: did the insurer need a reason for requesting the EUO in the first place? The answer depends on which Appellate Division department you are in.

The Regulation

11 NYCRR 65-3.5(e) provides that "when an insurer requires an examination under oath of an applicant to establish proof of claim, such requirement must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination." The very next sentence adds that "insurer standards shall be available for review by department examiners." The disagreement between the departments turns on what this regulation requires the insurer to do in litigation.

Second Department: No Objective Justification Required

The Second Department holds that an insurer moving for summary judgment on EUO non-appearance does not need to explain why it requested the EUO. The prima facie case is limited to three elements: the insurer duly scheduled at least two EUOs, the party failed to appear, and the insurer timely denied the claim after the last no-show.

The leading case is Interboro Insurance Company v. Clennon (113 AD3d 596, 2d Dept. 2014), where the court granted summary judgment and held that the assignor and provider had failed to raise any issues of fact as to the "propriety of the demand for the examination under oath." The Appellate Term, Second Department, has since applied this rule directly. In Northern Medical Care P.C. v. Nationwide Affinity Insurance Company of America (84 Misc 3d 136[A], App. Term, 2d Dept. 2024), the court cited Interboro and held that "defendant was not required to set forth objective reasons for requesting EUOs."

The most thorough analysis of this position appears in Flatbush Acupuncture P.C. v. Repwest Insurance Company (2025 NY Slip Op 25032, Civ. Ct., Queens County). Judge Kagan examined the text of 11 NYCRR 65-3.5(e) and concluded that the "specific objective justification" language is enforceable only by the Department of Financial Services, not by medical providers in court. He relied on two DFS General Counsel opinions. The first, from October 2002, explained that the regulation was added "to ensure that insurers would not request EUO's on either a routine or arbitrary basis" but that the Department itself would "perform market conduct examinations of insurers" to monitor compliance, and that "the regulation contains no requirement for insurers to provide those standards for review by a claimant or claimant's attorney when an EUO has been requested." The second, from December 2006, confirmed that "with respect to whether an insurer must include language stating the reason(s) for requiring the EUO, the regulation contains no such requirement." Under this framework, 11 NYCRR 65-3.5(e) is a regulatory standard that DFS enforces through market conduct examinations, not a litigation requirement that providers can invoke to defeat a summary judgment motion.

First Department: Objective Justification Required

The First Department takes a different view. In American Transit Insurance Company v. Jaga Medical Services P.C. (128 AD3d 441, 1st Dept. 2015), the court held that "the reason for the EUO request is a fact essential to justify opposition to plaintiff's summary judgment motion." In Country-Wide Insurance Company v. Delacruz (205 AD3d 473, 1st Dept. 2022), the First Department held that an insurer seeking summary judgment must provide a "specific objective justification" for requesting the EUO, and that the criteria by which the insurer decided an EUO was required are "essential for [the provider] to oppose" the motion.

This rule has teeth. In State Farm Mutual Automobile Insurance Company v. Lifeline Medical Imaging, P.C. (2025 NY Slip Op 02025, 1st Dept.), the First Department reversed a grant of summary judgment to State Farm, holding that the motion should have been denied as premature because "State Farm failed to offer Lifeline an objective justification for requesting the EUOs, as required by the governing no-fault regulations." The court emphasized that the EUO criteria "are exclusively within the State Farm's knowledge and control" and that State Farm had not fully responded to Lifeline's discovery request for a copy of the objective standards it relied upon when scheduling the EUO.

Practical Significance

The split matters primarily for providers opposing EUO non-appearance motions, but insurers need to understand it too. In the Second Department, a provider's demand for the insurer's justification is irrelevant to the summary judgment motion. In the First Department, the insurer must be prepared to disclose the criteria it applied and should respond to discovery requests for its EUO standards. Failure to do so will result in the motion being denied as premature, even where the EUO was properly scheduled and the assignor plainly did not show up.

Timing and Scope

Even when an insurer proves mailing and non-appearance, it must also show that it timely denied the claims. And when claims arrive while an EUO is pending, the insurer needs to understand when the clock starts and stops. Both issues have generated recent case law.

The 30-Day Denial Rule

Under 11 NYCRR 65-3.8(c), an insurer must pay or deny a claim within 30 calendar days after it receives proof of claim. In the EUO non-appearance context, that clock starts running after the assignor fails to appear at the final scheduled EUO. If the insurer does not issue its denial within that window, the defense is precluded, and the motion fails regardless of how strong the rest of the proof is.

In NY Wellness Med., P.C. v. MVAIC (2025 NY Slip Op 51165[U], App. Term, 2d Dept.), MVAIC moved for summary judgment on the ground that the assignor failed to appear for EUOs. The Appellate Term affirmed denial of the motion because MVAIC's proof did "not establish that MVAIC issued timely and proper denial of claim forms within 30 days of the last scheduled examination under oath." Without that showing, MVAIC "failed to demonstrate that it is not precluded from raising its defense." The court cited Quality Health Supply Corp. v. Nationwide Ins. (216 AD3d 1013 [2023]) for the proposition that the insurer carries the burden of proving timely denial as part of its prima facie case.

This is the third element of the prima facie case, and the one most easily overlooked. MSB Physical Therapy, P.C. v. Nationwide Ins. (2025 NY Slip Op 50831[U], App. Term, 2d Dept.) illustrates the full framework: the court affirmed summary judgment where the insurer established timely mailing of scheduling letters, the assignor's failure to appear, and "timely and proper denial[s] of the claims following [plaintiff's] failure to appear at the last scheduled EUO." Miss any one of the three, and the motion fails.

The EUO Toll on Subsequently Received Claims

A separate timing question arises when the insurer receives additional claims from the same assignor while an EUO is already pending. The no-fault regulations are silent on whether the EUO toll extends to those subsequent claims, but the case law has filled the gap.

In Precision Acupuncture P.C. v. State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50021[U], Civ. Ct., Kings County), the provider argued that one of its bills, received by State Farm after the first EUO no-show but before the second, was untimely denied because the 30-day clock should have started when that bill was received. The court rejected this argument. Relying on the Appellate Term's decision in ARCO Med. NY, P.C. v. Lancer Ins. Co. (34 Misc 3d 134[A], App. Term 2011), the court held that "once defendant served plaintiff with requests for EUOs, the resulting toll of defendant's time to pay or deny plaintiff's claims applied to each claim form which was submitted by the same plaintiff for the same assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs." Because the assignor failed to appear at the second EUO while the toll was still in effect, State Farm's denial of the subsequent bill within 30 days of that second no-show was timely.

The rule makes practical sense: an insurer that has requested an EUO to verify a claim should not be forced to pay or deny new claims from the same assignor while the verification is still pending. But the toll is not indefinite. It lasts only until the assignor either appears or fails to appear at the second scheduled EUO. After that, the 30-day clock runs.

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Cases Cited

Regulations Cited

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About This Research

I'm Tommy Eberle, CEO and co-founder of DocketDrafter. I'm not a lawyer. I compiled this analysis by:

• Searching CourtListener for 2025 New York opinions citing 11 NYCRR 65-3.5, 65-3.6, 65-3.8, and related no-fault EUO terms
• Filtering to published and unpublished opinions from NY state courts
• Reading the full text of each decision to identify recurring evidentiary issues and the departmental split on objective justification
• Using Claude Code to organize the findings

If you have comments or want to discuss the research process in detail, email me at tommy@docketdrafter.com.