Key Takeaway
Understanding EBT procedural requirements and Fogel decision impacts in no-fault insurance litigation. Expert analysis of A.M. Medical Services v GEICO case.
Procedural Pitfalls in No-Fault EBT Cases: Lessons from A.M. Medical Services v GEICO
In the intricate world of no-fault insurance litigation, procedural missteps can prove catastrophic to an otherwise meritorious case. The Appellate Term’s decision in A.M. Medical Services, P.C. v GEICO Insurance Co., 2009 NY Slip Op 51029(U) (App. Term 2d Dept. 2009), serves as a stark reminder of the importance of following established procedural requirements, particularly in matters involving Examination Before Trial (EBT) scheduling and dismissal motions.
The Case That Demands Attention
A.M. Med. Servs., P.C. v GEICO Ins. Co.
2009 NY Slip Op 51029(U)(App. Term 2d Dept. 2009)
Simply put, you have to read this case. It looks to be a real disaster. Three points of law seem to come from this case.
First, if you have an order that conditionally dismisses or precludes a party should an EBT not be performed on or before a certain date, the party wishing to give effect to that order needs to follow the Appellate Term’s Fogel decision. Yes Fogel.
The Appellate Term has previously applied Fogel, in a 5102(d) action, when it denied an EBT dismissal motion on the basis that the Defendant failed to offer evidence from someone with personal knowledge that EBT was attempted to be scheduled and did not occur. It is the same principle here or even in EUO cases. You need to obtain an affidavit from someone with personal knowledge that the EUO did not occur. This could be from a calendar clerk or attorney, provided the right foundation is laid in the affidavit or affirmation. That was probably missing in this case.
Second, late papers will be accepted provided there is no prejudice. The effect of this is self explanatory.
Third, Golia’s dissent is priceless and explains why we now have a different crop of attorneys (on both sides) fighting the appellate wars. I will leave it at that.
Understanding EBT Requirements in No-Fault Cases
For practitioners handling no-fault insurance cases throughout Nassau County, Suffolk County, and the five boroughs of New York City, understanding the procedural requirements surrounding Examinations Before Trial is crucial. The EBT process allows insurance companies to examine healthcare providers and other parties under oath to investigate claims and gather information relevant to coverage disputes.
However, as the A.M. Medical Services case demonstrates, the devil truly is in the details when it comes to EBT procedures. Courts routinely issue conditional orders that require EBTs to be completed by specific deadlines, with the understanding that failure to comply may result in dismissal or preclusion of evidence.
The Critical Importance of the Fogel Decision
The reference to Fogel in this decision cannot be overstated in its importance. The Fogel decision established critical procedural requirements that parties must follow when seeking to enforce conditional orders related to EBT scheduling. Specifically, Fogel requires that parties seeking dismissal based on failure to appear for an EBT must provide evidence from someone with personal knowledge that the examination was properly scheduled and that the party failed to appear.
This requirement addresses a fundamental fairness concern: ensuring that dismissals are not granted based on incomplete or inaccurate information about whether an EBT was properly noticed and whether the party actually failed to comply with court orders.
Practical Applications of Fogel in Long Island and NYC Practice
For attorneys practicing in the busy courts of Queens, Brooklyn, Manhattan, the Bronx, and Staten Island, as well as the Nassau and Suffolk County court systems, the Fogel requirements create both opportunities and obligations:
For Defendants/Insurance Companies: When seeking dismissal based on a plaintiff’s failure to appear for an EBT, you must provide detailed affidavit evidence from someone with personal knowledge (such as a calendar clerk, court reporter, or attorney) establishing that the EBT was properly scheduled and that the party failed to appear.
For Plaintiffs/Healthcare Providers: Understanding Fogel creates opportunities to challenge dismissal motions that lack proper foundation. If the moving party cannot establish the requisite personal knowledge through proper affidavit evidence, the motion should be denied.
The Extension to EUO Cases
The A.M. Medical Services decision importantly extends the Fogel requirements to Examination Under Oath (EUO) cases. EUOs are frequently required in first-party no-fault benefit disputes, where insurance companies seek to examine claimants under oath about the circumstances of their claims and treatment.
Similar to EBT situations, courts often issue conditional orders requiring EUOs to be completed by specific deadlines. The application of Fogel principles to EUO cases means that parties seeking dismissal for failure to appear at an EUO must provide the same level of detailed, personal knowledge evidence.
Foundation Requirements for EUO Affidavits
Whether dealing with EBT or EUO matters, the foundation requirements under Fogel are clear:
1. Personal Knowledge: The affiant must have personal knowledge of the scheduling and non-appearance
2. Proper Notice: Evidence must establish that proper notice was given to the party
3. Failed Appearance: Clear documentation that the party failed to appear as scheduled
4. Scheduling Details: Specific information about date, time, and location of the scheduled examination
Late Papers and the Prejudice Standard
The second principle from A.M. Medical Services – that late papers will be accepted provided there is no prejudice – reflects the courts’ general preference for resolving disputes on their merits rather than on procedural technicalities.
This principle is particularly important in the fast-paced environment of no-fault litigation, where tight statutory deadlines and heavy caseloads can sometimes lead to procedural missteps. For practitioners in the New York metropolitan area, understanding when late papers will be accepted can be the difference between a dismissed case and one resolved on the merits.
Factors Courts Consider in Evaluating Prejudice
When determining whether to accept late papers, courts typically consider:
• Length of Delay: How late were the papers filed?
• Reason for Delay: Was there a valid excuse for the delay?
• Prejudice to Opposing Party: Will the opponent be unfairly disadvantaged?
• Merit of the Underlying Claim or Defense: Does the party have a potentially meritorious position?
• Conduct of Counsel: Has there been a pattern of delays or procedural violations?
The Appellate Practice Landscape: Then and Now
The third observation from A.M. Medical Services – referencing Justice Golia’s “priceless” dissent and the “different crop of attorneys” now handling appellate practice – provides valuable insight into the evolution of no-fault litigation.
The complexity of no-fault insurance law has grown significantly over the years, requiring increasingly specialized knowledge of both substantive insurance law principles and intricate procedural requirements. This evolution has created opportunities for attorneys who master these specialties while challenging those who approach no-fault cases as routine collection matters.
Strategic Considerations for Modern No-Fault Practice
The lessons from A.M. Medical Services extend beyond the specific procedural requirements discussed in the decision. For practitioners throughout Long Island and New York City, these lessons inform broader strategic approaches to no-fault litigation.
Documentation and Record Keeping
The Fogel requirements emphasize the critical importance of maintaining detailed records of all correspondence, scheduling efforts, and appearances. Law firms should establish systems to ensure that calendar clerks and other staff members can provide the personal knowledge affidavits required under Fogel.
Motion Practice Standards
The decision reinforces the importance of thorough motion practice. Whether seeking dismissal or opposing such motions, attorneys must ensure that all factual assertions are supported by proper affidavit evidence from witnesses with personal knowledge.
Timing and Deadline Management
While courts may accept late papers when there is no prejudice, relying on this principle is risky. Effective case management requires systems to ensure compliance with all deadlines while maintaining the flexibility to address unexpected circumstances.
Frequently Asked Questions About EBT and EUO Procedures
Q: What constitutes sufficient personal knowledge for a Fogel affidavit?
A: The affiant must have first-hand knowledge of the scheduling process and non-appearance. This typically means the person who scheduled the examination, was present when the party failed to appear, or has direct access to scheduling records and can attest to the specific facts surrounding the non-appearance.
Q: Can an attorney provide a Fogel affidavit based on information from staff members?
A: While attorneys can provide affidavits, they must have personal knowledge or clearly establish the foundation for their knowledge. It’s often preferable to have the staff member with direct knowledge provide the affidavit, or to have the attorney clearly explain the basis for their knowledge in their affirmation.
Q: How late is too late for filing papers under the prejudice standard?
A: There’s no bright-line rule. Courts consider the length of delay along with other factors including the reason for delay and prejudice to the opposing party. However, delays of weeks or months require stronger justifications than delays of days.
Q: Do Fogel requirements apply to both Supreme Court and Civil Court cases?
A: Yes, the procedural requirements established in Fogel apply regardless of the court level. The fundamental principle of requiring personal knowledge evidence for dismissal motions is consistent across court systems.
Q: What should I do if my opponent files a dismissal motion that doesn’t meet Fogel requirements?
A: Challenge the motion by pointing out the lack of proper foundation. Argue that the moving party has failed to provide evidence from someone with personal knowledge as required under Fogel, and request that the motion be denied for failure to meet procedural requirements.
Best Practices for EBT and EUO Management
Based on the lessons from A.M. Medical Services and related cases, attorneys should implement the following best practices:
Scheduling Systems: Maintain detailed records of all scheduling correspondence, including certified mail receipts, email confirmations, and phone logs.
Staff Training: Ensure that calendar clerks and administrative staff understand the importance of detailed record-keeping and their potential role as affidavit witnesses.
Conditional Order Compliance: Treat all conditional court orders with utmost seriousness, implementing systems to ensure compliance and early identification of potential problems.
Motion Opposition Preparation: When facing dismissal motions, carefully review the moving papers for compliance with Fogel requirements and other procedural mandates.
The Broader Impact on No-Fault Practice
The A.M. Medical Services decision reflects the courts’ ongoing effort to balance efficiency with fairness in no-fault litigation. While courts recognize the need for case management tools like conditional dismissal orders, they also require parties to follow established procedures to ensure fundamental fairness.
For the thousands of no-fault cases filed annually in New York’s courts, these procedural requirements create a framework that protects the rights of all parties while promoting efficient case resolution. Understanding and following these requirements is essential for effective representation in this specialized area of practice.
Contact Experienced No-Fault Litigation Attorneys
The procedural complexities highlighted in A.M. Medical Services v GEICO demonstrate why no-fault insurance litigation requires specialized knowledge and attention to detail. Whether you’re facing EBT scheduling disputes, challenging dismissal motions, or navigating the complex requirements of no-fault practice, experienced legal representation is essential.
Don’t let procedural missteps jeopardize your meritorious claims or defenses. The intricate requirements of no-fault litigation demand attorneys who understand both the substantive law and the critical procedural requirements that can make or break a case.
Call 516-750-0595 to discuss your no-fault litigation needs with attorneys who understand the importance of proper procedure and meticulous case management in achieving successful outcomes for their clients.
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Legal Update (February 2026): Since this 2009 post, New York’s no-fault insurance regulations, particularly those governing EBT procedures and dismissal requirements under Insurance Law § 5102, may have been subject to regulatory amendments or court rule modifications. Practitioners should verify current procedural requirements for EBT scheduling, dismissal motions, and evidentiary standards for proving non-compliance with conditional orders, as established practices from 2009 may no longer reflect current law.
