Alrof again

Understanding Examination Under Oath Requirements in No-Fault Insurance Cases

The intersection of New York No-Fault Insurance Law and examination under oath (EUO) procedures continues to generate significant litigation. When insurance companies seek to deny claims based on a claimant’s failure to appear for scheduled examinations, courts must carefully evaluate whether proper procedures were followed by all parties.

The Alrof decision has become a cornerstone in EUO jurisprudence, establishing critical precedents about when an insurance company can successfully defend against no-fault claims based on examination failures. This particular case demonstrates the courts’ reluctance to grant summary judgment when EUO objections may be futile or when proper scheduling procedures haven’t been clearly established.

Understanding these dynamics is crucial for both healthcare providers seeking payment and insurance companies defending claims. The burden of proof regarding proper EUO scheduling and the consequences of non-appearance requires careful documentation and adherence to procedural requirements.

Case Background

In EMC Health Products, Inc. v Travelers Insurance Company, a medical provider brought suit in Kings County Civil Court to recover assigned first-party no-fault benefits. EMC Health Products, acting as assignee of the injured party Omayra Perez, moved for summary judgment. Travelers cross-moved for summary judgment dismissing the complaint, arguing that the plaintiff had failed to appear for scheduled examinations under oath.

The Civil Court (Judge Wavny Toussaint) denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, effectively dismissing the case. The plaintiff appealed to the Appellate Term, Second Department (2d, 11th, and 13th Judicial Districts), before Justices Pesce, Aliotta, and Solomon. The Appellate Term modified the lower court’s order, finding that while the plaintiff’s motion was properly denied, the defendant’s cross motion should also have been denied — resulting in both parties being sent back to litigate the matter on the merits.

Jason Tenenbaum’s Analysis:

EMC Health Prods., Inc. v Travelers Ins. Co., 2015 NY Slip Op 50475(U)(App. Term 2d Dept. 2015)

Another Alrof sighting…

“Consequently, plaintiff’s motion for summary judgment was properly denied. However, defendant’s cross motion should also have been denied, as defendant failed to establish, as a matter of law, its defense that plaintiff had failed to appear for properly scheduled examinations under oath”

Legal Significance

This decision is notable for the dual denial of summary judgment — a result that underscores how heavily fact-dependent EUO disputes remain in New York no-fault practice. The Appellate Term cited Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013 NY Slip Op 50458[U]) and Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (40 Misc 3d 130[A], 2013 NY Slip Op 51123[U]) — both landmark cases requiring insurers to affirmatively prove that EUOs were properly scheduled and that the assignee received adequate notice before non-appearance can serve as a valid defense.

The court also applied the Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. framework (114 AD3d 33 [2013]) on the plaintiff’s side, holding that the provider’s supporting affidavit failed to demonstrate either the absence of a timely denial or that any denial issued was conclusory, vague, or without merit as a matter of law. This dual standard — requiring both sides to make out their prima facie case with specificity — prevents either party from prevailing on bare assertions.

Practical Implications

For healthcare providers and their attorneys, this case is a reminder that moving for summary judgment in a no-fault action requires more than simply submitting the claim form and an affidavit. The affidavit must affirmatively address the denial — either establishing that none was timely issued or that the denial lacked merit. For insurers, the lesson is equally direct: relying on an EUO non-appearance defense demands documented proof of proper scheduling, proper mailing, and adequate notice. Without this evidentiary foundation, the defense will not survive summary judgment scrutiny regardless of whether the plaintiff actually appeared.

Key Takeaway

This decision reinforces that insurance companies cannot simply claim EUO non-appearance as a defense without proving proper scheduling procedures were followed. The court’s denial of both summary judgment motions reflects the fact-intensive nature of EUO no-show cases and emphasizes that procedural compliance must be clearly demonstrated rather than assumed. Practitioners on both sides should treat the Alrof line of cases as a checklist: every element — scheduling, mailing, notice, and follow-up — must be documented and presented with admissible evidence to prevail on a motion.

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