CHARLES STALEY v. Progressive Max Insurance Company, Defendant (2026)

The defendant Progressive Max Insurance Company has moved pursuant to CPLR § 3212 seeking summary judgement dismissing the action on the grounds the assignor failed to appear for an examination under oath. The plaintiff has opposed the motion. Papers were submitted by the parties and arguments held. Pursuant to CPLR § 2219(a) the court has reviewed all the papers submitted including NYSCEF document numbers 1-22 and now renders the following determination.

On July 3, 2024 the assignor Charles #3 Staley was allegedly injured in an accident. The plaintiff assignee provided medical services on his behalf and seeks $604.97 in payment for those services. Specifically, the plaintiff sought $101.93 for services rendered on November 4, 2024, $377.28 for services rendered on November 12, 2024 and $125.76 for services rendered on November 25, 2024. The defendant, the insurer of the assignor refused payment of these bills on the grounds the assignor failed to appear for an examination under oath [EUO]. The plaintiff commenced this action seeking payment. The defendant duly answered. The defendant has now moved seeking summary judgement dismissing the action arguing there are no questions of fact the action should be dismissed. As noted, the motion is opposed.

Conclusions of Law

Concerning first party no-fault benefits, an insurer may move seeking summary judgement dismissing the action on the grounds additional verification information was sought from the plaintiff and not provided (Eagle Surgical Supply Inc., v. Travelers Indemnity Company, 29 Misc 3d 129(A), 958 NYS2d 307 [Supreme Court Appellate Term Second Department 2010]).

The defendant seeks summary judgement on the grounds the assignor failed to appear at scheduled examinations under oath. To succeed on a motion for summary judgement for the failure of an individual to appear for an EUO an insurer only needs to demonstrate that it duly scheduled at least two EUO's, the party failed to appear and a timely denial of the claim was issued based upon the failure to appear (Northern Medical Care P.C. v. Nationwide Affinity Insurance Company, 84 Misc 3d 136(A), 255 NYS3d 555 [Appellate Term Second Department 2024]). Further, an affirmation submitted by an attorney who was scheduled to conduct the EUO and who stated she has first-hand knowledge the party failed to appear is sufficient to establish the party failed to appear (MAZ Chiropractic P.C. v. State Farm Insurance Company, 85 Misc 3d 135(A), 229 NYS3d 814 [Appellate Term Second Department 2025]). Thus, an insurance company is entitled to dismiss the lawsuit when they make a prima facie showing EUO letters were mailed and the party failed to appear for an EUO. Such showing can be an affidavit from someone, including defendant's counsel, describing the standard practices and procedures for mailing EUO letters and representing that such practices and procedures were followed in this case. This is proof that such letters were mailed (One RX Chemist Inc., v. Nationwide Mutual insurance Company, 87 Misc 3d 132(A), 244 NYS3d 415 [Appellate Term First Department 2025]).

The defendant has presented sufficient evidence that at least two notices were sent to assignor and that he failed to appear for an EUO (see, Affirmation of Justin Carriveau [NYSCEF Doc. No. 6]). Specifically, notices were sent on August 23, 2024 for an EUO scheduled for September 5, 2024 and a notice was sent on September 10, 2024 for an EUO scheduled for September 26, 2024 and the assignor failed to appear at any of these scheduled EUOs. The plaintiff does not dispute the assignor failed to appear for a scheduled EUO. Rather, the plaintiff argues the denial letter sent was deficient since it did not provide any elaboration why the denial was issued other than to state the claim was denied because policy conditions were violated (see, Denial of Claim Form [NYSCEF Doc. No. 9]). Thus, three denials were mailed to the plaintiff corresponding to the three bills submitted. Two of the denial letters were dated December 2, 2024 and one was dated December 11, 2024. They all indicated that the claims were denied because the assignor failed to submit to a medical examination in violation of the insurance contract's duties and conditions. The defendant argues that pursuant to Unitrin Advantage Insurance Company v All of NY, Inc., 158 AD3d 449, 71 NYS3d 16 [1st Dept 2018] the denials were deficient and hence invalid and consequently the defendant has never validly denied the claims and summary judgement must be denied.

In Unitrin (supra) the court held that a denial which only mentioned one scheduled EUO date but inadvertently failed to include the other scheduled EUO date "did not sufficiently apprise the provider as to the reason for denial" (id). As noted in New Chiropractic Care P.C. v. Nationwide Insurance Company of New York, 67 Misc 3d 1226(A), 128 NYS3d 150 [Civil Court Kings County 2020] the conclusion in Unitrin (supra) has been squarely rejected by the Appellate Term Second Department which has held that "a denial of claim form based upon the failure to appear for scheduled EUOs need not set forth the dates of the EUOs" (see, JYW Medical P.C. v. IDS Property Insurance Company, 58 Misc 3d 134(A), 92 NYS3d 703 [Appellate Term Second Department 2017], see, also, Aries Chiropractic P.C. v. Ameriprise Insurance Company, 66 Misc 3d 130(A), 120 NYS3d 555 [Appellate Term Second Department 2019]). The plaintiff argues that this court is bound by the pronouncements of other Departments in the absence of a ruling from the Second Department (Mountain View Coach Lines, Inc., v. Storms, 102 AD2d 663, 476 NYS2d 918 [2d Dept., 1984]). Therefore, this court is bound by Unitrin (supra) and hence the denial was insufficient.

The Appellate Division Second Department has never issued a specific ruling whether the failure to incudes the dates of the EUO's renders the denial insufficient. However, that court has, more broadly, addressed the sufficiency of denial letters. In Nyack Hospital v. Metropolitan Property and Casualty Insurance Company, 16 AD3d 564, 791 NYS2d 658 [2d Dept., 2005] the court held that a denial of a claim must comply with the requirements of 11 § NYCRR 65-3.4(c)(11) which provides the prescribed claim form that must be utilized, namely NYS form N-F-10. The court further elaborated and noted that the claim form cannot be missing information and must be complete. The court, citing earlier authority, explained that the denial will be invalid if it "is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law" (id). Thus, providing an invalid basis for the denial of the claim renders the denial fatally defective (St. Barnabas Hospital v. Allstate Insurance Company, 66 AD3d 996, 887 NYS2d 657 [2d Dept., 2009]). Likewise, leaving portions of the denial form blank renders the denial form defective (Lexington Acupuncture P.C. v. State Farm Insurance Company, 12 Misc 3d 90, 820 NYS2d 385 [Appellate Term Second Department 2006]). Further, omitting critical information in the denial form such as the dates the claims were received and the amounts and dates of the claims is "tantamount to no denial at all" (A.B. Medical Services PLLC v. Utica Mutual Insurance Company, 12 Misc 3d 139(A), 824 NYS2d 760 [Appellate Term Second Department 2006]). Thus, the Second Department adheres to the requirements mandated by the Form NF-10 when considering whether a denial is sufficient. This may depart from the stricter requirements imposed by Unitrin (supra) which demands that the denial letter contain far greater detail.

In truth, a careful consideration of Unitrin (supra) and its progeny reveals it may not have the vitality the plaintiff insists it carries. First, Unitrin (supra) has only been cited one time to support the proposition a denial letter must contain the dates of any unattended EUO (see, Liberty Mutual insurance Company v. Ezra Supply Inc., 2020 WL 5091202 [Supreme Court New York County 2020]). More significantly, it may only apply within the unique facts of Unitrin (supra) itself, namely where the denial letter specifically included one date of an unattended EUO but failed to include the other unattended EUO. This partial explanation was misleading and consequently invalid (see, State Farm Fire and Casualty Company v. AA Acupuncture C.I.R. P.C., 2021 WL 3290829 [Supreme Court New York County 2021], reversed on other grounds, State Farm Fire and Casualty Company v. AA Acupuncture C.I.R. P.C., 217 AD3d 643, 192 NYS3d 113 [1st Department 2023]). Thus, a general denial that the assignor failed to attend EUO's would be sufficient under Unitrin (supra). The court in Unitrin (supra) held the denial invalid because it specifically omitted a date when an EUO was unattended. This gave the provider the false impression there had been only one failed appearance at an EUO. Of course, a proper denial is only valid following two failed appearances at an EUO (Northern Medical Care P.C. v. Nationwide Affinity Insurance Company of America, 84 Misc 3d 136(A), 225 NYS3d 535 [Appellate Term Second Department 2024]).

Therefore, the court is not bound by the decision in Unitrin (supra). Consequently, the denials sent in this case were proper and thus, the motion seeking summary judgement dismissing this lawsuit is granted.

So ordered.

Dated: June 22, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

Mark Kagan, J.