Why Trust This Analysis
This article is part of our ongoing euo issues coverage, with 324 published articles analyzing euo issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
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)
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
“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.
Related Articles
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
Keep Reading
More EUO issues Analysis
EUO No-Show: Attorney Affirmation Sufficient Despite Time Lapse Between No-Shows and Execution
Appellate Term reverses Civil Court, holding that an attorney's affirmation attesting to plaintiff's failure to appear at EUOs was sufficient despite.
Feb 25, 2026
Simple addition is insufficient
Jodi Jacobs's 2021 mixed appeal: four claims dismissed, one fee balance unresolved, and why the schedule alone did not prove correct code use.
May 22, 2021
Understanding IME No-Shows in New York No-Fault Insurance Cases
Learn about IME no-shows in New York no-fault insurance cases. Expert legal guidance from experienced attorneys. Call 516-750-0595 for consultation.
Oct 26, 2019
The dates of the EUO's do not need to be placed in the letters
NY court rules EUO scheduling letter dates need not be included in denial forms. Case law analysis on no-fault insurance EUO notice requirements.
Oct 13, 2016
A taste of Unitrin in the Second Department
Second Department case analyzing IME failure as coverage defense in New York no-fault insurance law, examining conditions precedent to insurer liability.
Apr 7, 2015
Discovery not necessary to adjudicate merits of EUO no-show defense
Court rules discovery unnecessary when challenging EUO no-show defense in NY no-fault cases. Appellate Term confirms proper mailing establishes valid denial.
May 16, 2013Was this article helpful?
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a euo issues matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
