Key Takeaway
New York court ruling explores what constitutes "other appropriate means" to prove EUO no-shows beyond personal knowledge, leaving this critical legal standard undefined.
Understanding “Other Appropriate Means” in EUO No-Show Cases
In New York no-fault insurance litigation, proving that a plaintiff failed to appear for an Examination Under Oath (EUO) is crucial for insurance companies seeking to deny claims. While courts have established that such proof can be demonstrated through personal knowledge or “other appropriate means,” the latter standard remains frustratingly vague, creating uncertainty for both insurers and medical providers.
This ambiguity is particularly significant given the frequency of EUO disputes in no-fault cases, where insurance companies routinely schedule examinations as part of their claims investigation process. When providers fail to appear, insurers often seek summary judgment to dismiss the underlying lawsuit, but the burden of proof can be more complex than it initially appears.
Jason Tenenbaum’s Analysis:
Compas Med., P.C. v Travelers Ins. Co., 2015 NY Slip Op 51568(U)(App. Term 2d Dept. 2015)
“While defendant submitted a sworn statement by the attorney who was assigned to conduct the EUOs, plaintiff correctly argues on appeal that counsel failed to demonstrate, by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146, 2012 NY Slip Op 51628 ), that plaintiff had failed to appear for both of the EUOs. Therefore, defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint”
Proof of no show can be proved by (1) Personal knowledge; and (2) Other appropriate means. Now the question is what is “other appropriate means”? I cannot wait to see how that plays out…
Key Takeaway
The Compas Medical decision highlights a critical gap in no-fault litigation practice. While courts recognize that EUO no-shows can be proven through methods beyond personal knowledge, the undefined “other appropriate means” standard leaves practitioners guessing about what evidence will satisfy this requirement, potentially affecting the outcome of summary judgment motions.
Similar evidentiary challenges arise in IME no-show situations, where proper notice and documentation become essential elements of proof. As courts continue to refine these standards, the legal landscape for no-fault insurance disputes continues to evolve.
