An insurer may require a no-fault claimant (either the individual injured person or his/her assignee medical provider) to appear for an examination under oath (EUO) 11 NYCRR 65-3.5. If a claimant fails to appear for two scheduled EUOs, the insurer may deny the claim, provided it is raised in a timely denial of claim form. See Westchester Medical Center v. Lincoln General Insurance, (60 A.D.3d 1045 [2d Dept. 2009]). Cf. Unitrin Advantage Insurance v. Bayshore Physical Therapy, (82 A.D.3d 559 [1st Dept. 2011]) (In the First Department, failure to raise an EUO or IME no-show defense in a timely denial does not preclude such defense).  

In a recent case, Allstate Chiropractic v. Nationwide Affinity Insurance Co. of America, (78 Misc 3d 130(A) [App. Term 2d, 11th & 13th Jud. Dists. 2023]), the insurer scheduled an EUO of the medical provider for June 8, 2018, and when the medical provider failed to appear, scheduled a second EUO for July 13, 2018. Upon receipt of the scheduling notice for the second EUO, the medical provider requested it be rescheduled to a later date, Sept. 14. The insurer denied the request, proceeded with the EUO and placed a statement on the record of the medical provider's nonappearance. However, instead of denying the medical provider's claim after the second missed EUO, the insurer scheduled a third EUO for Sept. 14, 2018. The medical provider failed to appear for the third EUO and the insurer denied the claim on Sept. 17, 2018.