Key Takeaway
Court ruling establishes that a law firm partner's affirmation can effectively prove a plaintiff's failure to appear at a scheduled examination under oath.
Proving Non-Attendance at Examinations Under Oath
In New York No-Fault Insurance Law cases, insurance companies often require claimants to attend examinations under oath (EUOs) as part of the claims process. When a claimant fails to appear for a scheduled EUO, insurers may use this non-attendance as grounds to deny coverage. However, insurers must properly establish that the non-appearance actually occurred.
This case from the Appellate Term provides important guidance on what constitutes sufficient proof of an EUO no-show. The decision clarifies the evidentiary standards for demonstrating that a plaintiff failed to attend a properly scheduled examination under oath.
Jason Tenenbaum’s Analysis:
Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 2010 NY Slip Op 50716(U)(App. Term 2d Dept. 2010)
“In opposition to plaintiff’s motion and in support of its cross motion for summary judgment, defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO. Counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for duly scheduled EUOs”
A partner’s affirmation is sufficient so show a non-appearance at an EUO. The affirmation probably established how the partner knew that the Plaintiff failed to attend the EUO. See generally, Progressive Classic Ins. Co. v. Kitchen, 46 A.D.3d 333 (1st Dept. 2007).
Key Takeaway
The court’s decision establishes that a law firm partner’s affirmation containing sufficient factual allegations can effectively prove that a plaintiff failed to appear for a scheduled EUO. This ruling provides insurers with clear guidance on the type of evidence needed to substantiate no-show claims in litigation involving examination under oath requirements.
Legal Update (February 2026): Since this 2010 decision, New York’s no-fault insurance regulations and EUO procedural requirements may have been amended, particularly regarding notice provisions, scheduling protocols, and evidentiary standards for proving non-attendance. Practitioners should verify current Insurance Law Article 51 provisions and recent Appellate Term decisions when establishing EUO no-show defenses.
