Key Takeaway
Court reverses denial of default judgment in EUO case, finding attorney's affirmation under penalty of perjury sufficient proof of proper mailing procedures.
In no-fault insurance litigation, proving proper service of Examination Under Oath (EUO) notices is crucial for obtaining default judgments when insureds fail to appear. The challenge often lies in demonstrating adequate proof of mailing, particularly when documentation appears incomplete or inconsistent. This case from the First Department illustrates how courts evaluate different types of proof and highlights the importance of clear, comprehensive attorney affirmations.
The Liberty Mutual case demonstrates the ongoing tension between trial courts seeking detailed documentation and appellate courts’ willingness to accept attorney certifications made under penalty of perjury. This tension frequently arises in denial of claims cases where insurers must prove compliance with procedural requirements.
Jason Tenenbaum’s Analysis:
Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc., 2015 NY Slip Op 05891 (1st Dept 2015)
“The IAS court denied plaintiffs’ motion for a default judgment, concluding that plaintiffs had not submitted sufficient proof of mailing the letters notifying defendant of the scheduled EUOs We note that defendant has not submitted opposition to the instant appeal.
We reverse. The affirmation of plaintiffs’ counsel submitted in support of plaintiffs’ motion for default clearly set forth the mailing procedures to defendant. Indeed, counsel represented, under penalty of perjury, that he personally verified the mailing process for every EUO letter sent. This was adequate proof that the EUO letters were mailed to defendant (see e.g. Olmeur Med. P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143 ); Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137 ).”
If you looked at the affidavits in this case, you would note that there are unexecuted affidavits of service relative to the EUO letters and a general attorney affirmation of mailing. Probably threw the Court off.
Key Takeaway
Attorney affirmations made under penalty of perjury can constitute sufficient proof of EUO notice mailing, even when accompanied by incomplete documentation. The First Department’s reversal emphasizes that detailed attorney certifications of mailing procedures may overcome deficiencies in formal affidavits of service, though practitioners should ensure comprehensive documentation to avoid EUO-related procedural challenges.
