Personal knowledge became more personal

The Personal Knowledge Requirement in No-Fault EUO Cases

Attorney affidavits play a critical role in no-fault insurance litigation, particularly when insurers seek summary judgment based on Examination Under Oath (EUO) non-appearances. However, New York courts impose strict requirements on the content of these affidavits. A landmark 2013 Appellate Term decision dramatically altered the landscape by establishing that attorneys cannot rely on office practices and file reviews when attesting to EUO no-shows — they must have actual personal knowledge of the non-appearance.

This ruling represents a significant departure from prior practice. For years, insurance companies successfully defended no-fault claims by submitting attorney affidavits describing office procedures for scheduling EUOs and confirming non-appearances based on file reviews. The Alrof decision explicitly overruled this practice, requiring more rigorous proof of no-shows to support summary judgment.

The personal knowledge requirement reflects fundamental evidentiary principles. CPLR 3212 demands that summary judgment motions be supported by affidavits from persons with knowledge of the facts. Conclusory statements based on office file reviews do not constitute personal knowledge when the affiant has no direct observation of the underlying facts. This distinction becomes particularly important in EUO cases where non-appearance determinations can eliminate providers’ payment rights entirely.

Case Background

In Alrof, Inc. v Safeco National Insurance Co., the medical provider sued for unpaid no-fault benefits. Safeco cross-moved for summary judgment, submitting an attorney affirmation stating that upon reviewing his office file and based on “knowledge of his office practices and procedures,” the provider failed to appear at a properly noticed EUO.

The trial court apparently granted Safeco’s motion, finding the attorney affirmation sufficient to establish the EUO no-show defense. However, on appeal, the Appellate Term, Second Department reversed, holding that the attorney’s affidavit lacked the personal knowledge required to support summary judgment. This reversal explicitly overruled the court’s own prior decisions that had permitted such attorney affirmations.

Jason Tenenbaum’s Analysis:

Alrof, Inc. v Safeco Natl. Ins. Co., 2013 NY Slip Op 50458(U)(App. Term 2d Dept. 2013)

“In support of its cross motion, defendant submitted an affirmation from its attorney who stated that upon review of his office file and “knowledge of his office practices and procedures,” plaintiff failed to appear at a properly noticed examination under oath (EUO).”

…

“The affidavit of defendant’s attorney was of no probative value as it lacked personal knowledge of the nonappearance of plaintiff. It is well settled that a motion for summary judgment must be supported by an affidavit from a person having knowledge of the facts (CPLR 3212 ). A conclusory statement from an attorney which fails to demonstrate his or her personal knowledge is insufficient to support summary judgment…. To the extent our prior decisions (see e.g. W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142, 2009 NY Slip Op 51732 ; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133, 2010 NY Slip Op 51338 ) would require a different result, they should no longer be followed.”

“While a medical provider is required to submit to examinations under oath when requested by the insurer (Insurance Department Regulations § 65-1.1), as a condition precedent to payment of a claim, their alleged noncompliance must be established by admissible evidence (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ).”

Legal Significance: A Paradigm Shift in Proof Requirements

The Alrof decision represents a watershed moment in no-fault litigation by explicitly overruling prior precedent and establishing stricter evidentiary standards. The court’s willingness to acknowledge its previous errors and change course demonstrates judicial commitment to proper evidentiary requirements even when doing so disrupts settled expectations.

This ruling fundamentally alters how insurance companies must prove EUO no-shows on summary judgment. Attorney affidavits based solely on file reviews and knowledge of office procedures no longer suffice. Instead, insurers must present evidence from witnesses with direct personal knowledge — typically the investigator or court reporter scheduled to conduct the EUO who can attest that they appeared at the scheduled time and place but the provider did not.

The decision establishes several important principles. First, it reaffirms that CPLR 3212’s personal knowledge requirement cannot be satisfied through secondhand information or conclusory statements. Second, it recognizes that EUO non-appearance represents a factual determination requiring direct observation, not legal conclusions drawn from file reviews. Third, it emphasizes that substantial rights depend on these determinations, warranting rigorous proof standards.

The opinion’s explicit overruling of prior decisions created uncertainty about pending cases that relied on attorney affidavits under the old standard. Insurance companies that had obtained summary judgment based on attorney affirmations suddenly faced potential reversals, while providers gained new grounds to challenge denials predicated on inadequate no-show proof.

Practical Implications for No-Fault Practitioners

Insurance carriers must fundamentally restructure their EUO documentation practices post-Alrof. When scheduling EUOs, insurers should ensure that investigators or court reporters who will conduct examinations are available to provide affidavits if providers fail to appear. These affiants should document their personal presence at the scheduled time and place, their qualifications to conduct the examination, and the provider’s absence. Generic attorney affirmations no longer provide adequate proof.

Medical providers defending against EUO-based denials should carefully examine the personal knowledge basis for any affidavits supporting the insurer’s position. When insurers rely on attorney affirmations or affidavits from employees without direct knowledge of non-appearances, providers can successfully oppose summary judgment by citing Alrof. This defense applies even when insurers’ office procedures were properly followed and files contain evidence suggesting non-appearance.

Trial courts must strictly apply the personal knowledge requirement when evaluating summary judgment motions involving EUO no-shows. Courts should require specific factual allegations demonstrating that affiants personally observed the circumstances they attest to, not merely reviewed files or followed standard procedures.

Related Articles

• Personal Knowledge Requirements for EUO Non-Appearances: NY Legal Standards
• Alrof citing again – never a good thing
• Personal knowledge is well not too personal
• An ALROF citing
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2013 decision regarding personal knowledge requirements for EUO no-show affidavits, Insurance Department Regulation § 65-1.1 and related no-fault procedural requirements may have been amended or updated. Additionally, subsequent appellate decisions may have further refined the personal knowledge standards for summary judgment motions in no-fault cases. Practitioners should verify current regulatory provisions and recent case law developments regarding EUO compliance and evidentiary requirements.