Key Takeaway
Court ruling clarifies personal knowledge requirements for proving EUO no-shows in no-fault insurance cases, emphasizing detailed business practice affidavits.
Understanding Personal Knowledge Requirements in EUO No-Show Cases
When insurance companies seek to deny claims based on an insured’s failure to appear for an Examination Under Oath (EUO), they must prove that non-appearance with evidence from someone having “personal knowledge.” The Appellate Term’s decision in Ortho Products & Equipment v. Interboro Insurance provides important guidance on what constitutes sufficient proof, particularly regarding the level of detail required in business practice affidavits.
This case builds upon established precedent while clarifying that properly detailed affidavits can meet the personal knowledge standard - a significant development for practitioners handling New York No-Fault Insurance Law matters. The decision also references the ongoing tension between different approaches to proving EUO non-appearances, particularly in relation to earlier cases like Alrof and Bright Care.
Jason Tenenbaum’s Analysis:
Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 2013 NY Slip Op 52054(U)(App. Term 2d Dept. 2013)
“It further established that its EUO scheduling letters had been timely mailed and that Mr. Robinson and Mr. Forbes had each failed to appear at either of their duly scheduled EUOs (see Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146, 2012 NY Slip Op 51628 )”
(DISSENTING MEMORANDUM)
“For the reasons set forth in my dissent in Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (36 Misc 3d 146, 2012 NY Slip Op 51628 ), I find that defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath”
In this case, the “personal knowledge” was based upon an affidavit more detailed and circumspect than the affidavits circulating around in Alrof and Bright Care. The case is really an application of ATIC v. Lucas, regarding “personal knowledge.” While I would not say Alrof is dead, I would note that a properly detailed business practice affidavit will suffice to demonstrate the no show.
Key Takeaway
The Ortho Products decision demonstrates that while personal knowledge requirements for proving EUO no-shows remain stringent, insurance companies can meet this standard through sufficiently detailed business practice affidavits. The level of detail and specificity in the affidavit is crucial - generic or boilerplate affidavits may not suffice, but properly substantiated no-show documentation can establish the necessary foundation for claim denials.
Legal Update (February 2026): Since this 2013 post, New York’s EUO procedures and personal knowledge requirements may have evolved through subsequent appellate decisions, regulatory amendments, or changes to Insurance Department guidelines regarding proof standards for non-appearance claims. Practitioners should verify current case law and procedural requirements, as courts have continued to refine the standards for establishing personal knowledge in EUO denial cases.
