This morning brings us the Appellate Term, 2d Department's decision in Great Wall Acupuncture, P.C. v. New York Central Mutual Insurance Company, 2009 NYSlipOp 50224(U) (App. Term, 2d Dep't, 2009).
In a summary judgment motion, "defendant asserted that it timely denied plaintiff's claims based on plaintiff's owner's failure to appear for scheduled examinations under oath (EUOs)." Id. However, the Appellate Term found that "defendant failed to timely request the EUO after receiving plaintiff's bills." Id. As a result, they held that "defendant is precluded from, inter alia, relying upon plaintiff's failure to appear at an EUO as a defense to this action." Id.
The App. Term has thus established a sharp contrast between EUO requests and IMEs. As the App. Div. held in Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720 (2d Dep't, 2006), "an insurer may deny a claim retroactively to the date of loss for a claimant's failure to attend IMEs when, and as often as, the insurer may reasonably require." (Internal quotation marks omitted). Such retroactive denial is not available for EUOs that are not requested under the verification time frames, and a failure to attend untimely-requested EUOs is apparently not a coverage issue.