DOMONIQUE BARNES v. PI BI (2026)

Recitation, as required by CPLR § 2219(a) of the papers considered in review of this Motion:

Papers

Notice of Motion and Affidavits Annexed 1-2

Cross Motion and Affidavit Annexed 3-4

Plaintiff's Opp/Reply 5

Defendant's Opp/Reply 6

Upon the foregoing cited papers, pursuant to CPLR § 3212, and after oral argument on August 11, 2026, the Decision and Order on Defendant's Motion for Summary Judgment and Plaintiff's Cross Motion for Summary Judgment are as follows:

Defendant's motion for Summary Judgment is granted in its entirety and Plaintiff's Cross-Motion is denied. The subject bill was received on September 13, 2019. Defendant scheduled an examination under oath ("EUO") by letter dated September 23, 2019. Plaintiff appeared for the EUO on October 21, 2019. Defendant submits that due to Plaintiff's insufficient testimony, it requested additional written verification on October 29, 2019. Thereafter, Defendant denied the claim on March 4, 2020, as Plaintiff failed to issue any response within the statutory timeframe of 120 days. Following issuance of the denial, Plaintiff responded on April 17, 2020, and while it did not provide written verification, Plaintiff advised that it intended to provide written verification in the future.

Although Plaintiff is indeed correct in its argument that post-EUO verification is not addressed in the No-Fault Statute, nevertheless, case law has established that post-EUO verification request is permissible as consistent with legislative intent. Where EUO was held but failed to provide verification responses insurer requires to verify the claim for services, post-EUO requests have been upheld not merely in the written form of verification responses. "If the insurer is unable to garner the information that it needs from the [EUO] of a person submitted by the assignee corporation or partnership, the insurer may request additional examinations of the assignee until a person is submitted for examination by the assignee who can provide the 'items necessary to verify the claim'?" (Nationwide Affinity Ins. Co. of Am. v Gepp, 234 AD3d 1320, 1322 [4th Dept 2025], citing 11 NYCRR .§ 65-3.5 [c]). The Nationwide Court acknowledged that the time to pay or deny a claim can be tolled by a verification request. An insurer is entitled to receive all items necessary to verify the claim. The Court opined that where the verification is the EUO, verification is deemed complete as of the date of the EUO. However, if verification cannot be deemed complete as all the necessary verification could not be garnered from the EUO, then pursuant to case law, an insurer is permitted to request additional verification through additional EUOs pursuant to Nationwide, or seek post-EUO written verification requests, which Defendant pursued in the case at bar. Thereafter, where verification sought is not provided within 120 days, an insurer is permitted to deny the claim at issue, as done here.

In the instant case, Defendant's initial request for the EUO tolled its time to pay or deny the claim. Defendant submitted a copy of the transcript and the SIU affidavit in order to demonstrate that it did not obtain all the necessary information from the EUO and was entitled to seek written verification following the EUO. Thereafter, Defendant demonstrated that Plaintiff did not respond until after 120 days from Defendant's first request and demonstrated that Plaintiff failed to provide written verification responses to Defendant's requests. Plaintiff's purported response to eventually respond to the specific verification requests in the future is not a response. As a result, Defendant was entitled to deny the claim at issue.

Plaintiff errs in its argument that the EUO being held stops the tolling notwithstanding that post-EUO verification requests were made. Rather, the post-EUO verification requests continue the tolling. Most notably, post-EUO verification requests are the consequence of Plaintiff deponent's failure to provide verification responses in the first instance at the EUO. Thus, requiring Defendant to serve post-EUO verification requests to address non-responsiveness of the EUO held. Similarly to Nationwide, although there is no specific agreement between the parties, in this instant matter, Plaintiff acknowledges the validity of the post-EUO verification requests, where Plaintiff, although untimely, responded with an intent to respond eventually, not a response, after the expiration of the 120-day period. Further, Plaintiff's argument in its reliance on Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41 (App Term 2024) that Defendant's post-EUO verification request on October 29, 2019, was untimely and that verification regarding the subject claim was received on the date of the EUO (i.e. October 21, 2019) is misplaced and rejected pursuant to Nationwide. Accordingly, Defendant's Motion is granted in its entirety and Plaintiff's Cross-Motion is denied.

This constitutes the Decision and Order of the Court.

DATE August 20, 2026

HON. SANDRA E. ROPER

Sandra E. Roper, J.