Partner's affirmation demonstrated the "no-show" component of an EUO no-show defense

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.

Establishing EUO non-appearance requires competent evidence from witnesses with personal knowledge. Insurance companies cannot rely on hearsay, claims file entries, or conclusory assertions. The witness must have direct knowledge of the non-appearance—typically by being present at the scheduled time and place and observing that the claimant did not appear. This requirement ensures that EUO no-show defenses rest on reliable evidence rather than speculation or incomplete records.

The question of who can provide this testimony has generated litigation. Must the examining attorney personally attest to non-appearance? Can law firm staff provide the necessary proof? Or can the carrier’s claims personnel establish non-attendance? The Crotona Heights Medical case addresses these questions by clarifying that law firm partners conducting EUOs can provide competent proof of non-appearance through proper affirmations.

Case Background

Crotona Heights Medical, P.C., a healthcare provider, brought suit against Farm Family Casualty Insurance Company seeking payment for no-fault benefits. The provider moved for summary judgment, establishing prima facie entitlement to payment. Farm Family opposed the motion and cross-moved for summary judgment, asserting that the plaintiff’s assignor had failed to appear for scheduled Examinations Under Oath.

In support of its cross-motion, Farm Family submitted an affirmation from a partner in the law firm retained to conduct the EUOs. This partner alleged facts establishing that the plaintiff failed to appear at the law office for duly scheduled examinations. The critical question became whether a law firm partner’s affirmation provided sufficient proof of non-appearance to establish the EUO no-show defense.

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).

Legal Significance

The Crotona Heights Medical decision establishes that law firm partners conducting EUOs possess the necessary personal knowledge to attest to non-appearances. This makes practical sense—the examining attorney scheduled the EUO, prepared for it, and was present at the scheduled time. When the claimant fails to appear, the attorney has direct personal knowledge of that non-appearance. An affirmation from such an attorney meets the personal knowledge requirement courts impose for EUO no-show defenses.

The decision builds on Progressive Classic Insurance Co. v Kitchen, a First Department case addressing similar evidentiary issues. Kitchen established that proof of EUO non-appearance requires personal knowledge and cannot rest on hearsay or indirect evidence. Crotona Heights extends this principle by confirming that the examining attorney’s personal knowledge suffices—additional corroboration from reception staff or other witnesses is unnecessary.

This ruling has important implications for how insurance carriers structure EUO procedures. Carriers often use outside law firms to conduct EUOs, particularly when litigation has commenced. These attorneys schedule examinations, prepare questions, and conduct the sworn testimony. When claimants fail to appear, these same attorneys possess first-hand knowledge of the non-appearance. Their affirmations or affidavits provide the competent evidence courts require to establish EUO no-show defenses.

The decision also clarifies that the partner’s affirmation must “allege facts sufficient to establish” non-appearance. Generic assertions are insufficient. The affirmation must explain how the partner knows about the non-appearance—for example, by stating that the partner was present at the scheduled time and location, that appropriate preparations had been made, and that the claimant did not appear despite proper notice. Providing these factual details distinguishes personal knowledge from speculation.

Practical Implications

For insurance carriers and defense counsel, Crotona Heights Medical validates the common practice of having examining attorneys attest to EUO non-appearances. When carriers retain law firms to conduct EUOs, those firms can provide the necessary proof of non-appearance through partner affirmations. Defense counsel should ensure these affirmations contain sufficient factual detail—not just conclusory statements that the claimant failed to appear, but specific allegations about the partner’s presence, preparations, and observations.

The decision also counsels carriers about record-keeping. The examining attorney should maintain contemporaneous notes documenting the scheduled EUO time and the claimant’s non-appearance. These notes support the later affirmation and provide defense counsel with specific facts to include. Without such documentation, the partner’s affirmation may lack the factual specificity courts require.

For healthcare providers and plaintiffs’ attorneys, Crotona Heights narrows the available challenges to EUO no-show defenses. Providers cannot successfully argue that examining attorneys lack personal knowledge of non-appearances. The attorneys were present and observed the non-appearance—that is sufficient personal knowledge. Instead, providers must focus on other potential deficiencies: improper notice of the EUO, unreasonable scheduling, or failure to properly reschedule when the claimant sought an adjournment.

Providers should also scrutinize the examining attorney’s affirmation for factual gaps. Does it actually allege facts showing personal knowledge, or does it contain only conclusory statements? Did the attorney explain how they know the claimant failed to appear? These questions can identify weaknesses in the carrier’s proof even when the examining attorney provides the attestation.

The decision reinforces the importance of complying with EUO requests. When carriers properly schedule EUOs and claimants fail to appear without justification, courts will sustain claim denials. The examining attorney’s affirmation provides the proof carriers need, and providers have limited grounds to challenge such proof. Claimants who ignore EUO notices risk losing their right to benefits regardless of the underlying merits of their claims.

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.

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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.

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