Key Takeaway
New York court ruling confirms attorney affirmations stating claimants failed to appear at EUOs are sufficient evidence to establish no-show defense in no-fault cases.
Attorney Statements Sufficient for EUO No-Show Defense
In New York’s no-fault insurance litigation, insurance companies frequently rely on examination under oath (EUO) no-show defenses to deny claims. When claimants fail to appear for scheduled EUOs, insurers must prove this non-appearance occurred. A recent appellate court decision clarifies that attorney affirmations stating a claimant “did not show up” provide adequate foundation for this defense.
This ruling addresses ongoing disputes about the level of detail required in affidavits supporting EUO no-show defenses. While some practitioners have argued for elaborate documentation of business practices, the court’s decision streamlines the evidentiary requirements for attorneys conducting EUOs.
Jason Tenenbaum’s Analysis:
Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 2012 NY Slip Op 50579(U)(App. Term 2d Dept. 2012)
“Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs”
The latest line of attack in the IME no show and EUO no show wars has been the allegation that the affiant did not set forth a sufficiently detailed affidavit, proving that the claimant failed to attend his EUO’s.
In the case where the partner at the law firm swears out an affidavit that the Claimant did not show based upon the firm’s business practices, this is correct. Where the affidavit, however, is based upon the affidavit of the person hired to conduct the EUO or IME, this type of elaborate business practice is not necessary. Rather, a perfunctory attestation that the affiant was there and the Claimant failed to show would be sufficient.
Key Takeaway
When the attorney who actually conducted the EUO provides the affirmation, courts accept straightforward statements that the claimant failed to appear. Unlike situations requiring detailed business practice affidavits, attorneys with personal knowledge need only provide basic attestation of non-appearance. This distinction significantly simplifies the evidentiary burden for establishing no-show defenses in no-fault litigation.
Legal Update (February 2026): Since this 2012 decision, New York’s examination under oath (EUO) requirements and evidentiary standards for no-show defenses may have been modified through regulatory amendments, appellate decisions, or changes to insurance department guidelines. Practitioners should verify current requirements for attorney affirmations and supporting documentation when establishing EUO non-appearance defenses.
