Key Takeaway
First Department upholds no-fault insurer's EUO no-show denial with proper mailing proof despite incomplete attorney affidavit in Hertz Corp. v Active Care
This article is part of our ongoing euo issues coverage, with 197 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.
Hertz Corp. v Active Care Med. Supply Corp., 2015 NY Slip Op 00212 (1st Dept. 2015)
“In this action seeking a declaration that Hertz is not required to reimburse defendants for treatment they allegedly provided in connection with an automobile accident, plaintiff submitted sufficient proof of mailing correspondence to defendants regarding the scheduling of examinations under oath (EUO) on two separate occasions (Nassau Ins. Co. v Murray, 46 NY2d 828 ) and defendants’ failure to appear. Although plaintiff’s counsel’s affidavit did not state that he personally mailed the particular notices of the EUOs, or describe his office’s practice and procedure for mailing such notices (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 ), objective proof of mailing (see Matter of Szaro v New York State Div. of Hous. & Community Renewal, 13 AD3d 93, 94 ) was provided by the EUO notices, which contained the same certified mail number in their captions that was reflected on the certified mail return receipts and the United States Postal Service “Track & Confirm” report (cf. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 548 ).
The attorney who was assigned to the file and who would have conducted the EUO if the defendants had appeared certainly was in a position to state that the defendants did not confirm their appearances as directed in the notice and did not otherwise appear in his office on the date indicated.
The No-Fault Regulation contains explicit language in 11 NYCRR 65-1.1 that there shall be no liability on the part of the no-fault insurer if there has not been full compliance with the conditions precedent to coverage. Thus, defendants’ failure to attend the EUOs is a violation of a condition precedent to coverage that vitiates the policy.”
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If you compare this to the Appellate Term matter of Optimal Well-Being Chiropractic, P.C. v Ameriprise Auto & Home Ins.,2014 NY Slip Op 51858(U)(App. Term 2d Dept 2014), you will see how a similar no-show affidavit yielded a different result.
It is also noteworthy that a certified mail letter with a green card or track and confirm stating the parcel was received is sufficient to prima facie prove mailing san affidavits. This is helpful when the affidavits of mailing are not up to the task. This Court is taking a hard line on these cases and a particular provider’s firm who keeps trying to push the envelope in a Court where they are not welcome.
Related Articles
- New York No-Fault Insurance Law
- Personal Knowledge Requirements for EUO Non-Appearances: NY Legal Standards
- How to Challenge EUO No-Show Denials: When Improper Notice Can Reverse Insurance Denials in New York
- Understanding EUO Denial: When Insurance Companies Can Substantiate Coverage Denials
- Validity of EUO, Appellate Term, 2d Dept: Take two
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.
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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.
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