Key Takeaway
New York court finds that requesting an EUO adjournment before the scheduled date may prevent it from being considered a "no-show," even without mutual rescheduling agreement.
Understanding EUO “No-Shows”: When a Miss Isn’t Really a Miss
In New York no-fault insurance litigation, insurers frequently deny claims based on alleged failures to appear at Examinations Under Oath (EUOs). However, determining whether an absence constitutes a true “no-show” requires careful examination of the circumstances. The recent Appellate Term decision in Excel Imaging, P.C. v Allstate Ins. Co. demonstrates that advance communication about scheduling conflicts can significantly impact how courts evaluate these situations.
This case highlights an important distinction in New York No-Fault Insurance Law: insurers cannot simply point to an empty chair at a scheduled EUO and claim automatic victory. Courts will examine the full record to determine whether the absence was truly unexcused. As we’ve seen in other EUO no-show cases, the devil is often in the details of pre-hearing communications.
Jason Tenenbaum’s Analysis:
Excel Imaging, P.C. v Allstate Ins. Co**.**, 2015 NY Slip Op 51896(U)(App. Term 2d Dept. 2015)
(1) “Here, defendant alleges that plaintiff’s assignor failed to appear for duly scheduled EUOs on January 28 and February 24, 2011. However, the papers submitted in support of defendant’s motion included a letter from defendant, dated February 7, 2011, which indicated that plaintiff had requested an adjournment of the January 28, 2011 date. At oral argument, defendant’s counsel conceded that this request was made before January 28, 2011, but he did not indicate whether or not there had been a mutual rescheduling prior to that date”
(2) “Even absent a prior mutual agreement to reschedule, there may be other reasons why plaintiff’s assignor should not be considered to have failed to appear for the January 28, 2011 appointment.”
So an affidavit or proof of sickness, inability to attend (if communicated), etc., can be considered grounds to vitiate a no-show.
Key Takeaway
Courts will look beyond surface-level “no-shows” to examine whether advance notice was provided and legitimate reasons existed for the absence. Even without mutual agreement to reschedule, documented illness, inability to attend, or pre-hearing adjournment requests can prevent an EUO absence from being characterized as an unexcused failure to appear. This underscores the importance of maintaining detailed records of all communications regarding EUO scheduling and objections.
