Key Takeaway
New York appellate court clarifies personal knowledge requirements for insurance attorneys in EUO no-show cases, highlighting key differences between departments.
Understanding Personal Knowledge Standards in No-Fault EUO Cases
New York’s no-fault insurance system requires healthcare providers to submit to examinations under oath (EUOs) when requested by insurance carriers. When claimants fail to appear for these examinations, insurance companies must prove their compliance with proper procedures through attorney affirmations demonstrating “personal knowledge” of office practices.
A recent appellate decision illustrates the strict standards courts apply when evaluating these affirmations, particularly regarding what constitutes sufficient “personal knowledge” for attorneys seeking to establish their carrier’s compliance with EUO procedures.
Jason Tenenbaum’s Analysis:
EMA Acupuncture, P.C. v Travelers Ins. Co., 2016 NY Slip Op 50173(U)(App. Term 2d Dept. 2016)
“The affirmation of defendant’s attorney failed to describe or demonstrate “personal knowledge of the office procedures when a claimant failed to appear for ” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 ). Nor did the affiant allege that she was assigned to the file and would have conducted the EUO if plaintiff’s principal had appeared”
The personal knowledge test could be met through Quality v. Interboro, Ortho-Med v. Interboro and Interboro v. Clennon. Those cases set forth a practice and procedure that will satisfy the practice and procedure test. The “I was assigned to the file” test may work in the First Department but will fail the Alrof and Bright Supply test.
Key Takeaway
Courts require attorneys to demonstrate specific personal knowledge of their office’s EUO procedures, not merely general familiarity. While claiming assignment to a specific file might satisfy First Department standards, it typically fails under the stricter Alrof citing again – never a good thing precedent applied in other departments.
Navigating Different Departmental Standards
The varying standards between New York’s appellate departments create strategic considerations for insurance carriers and healthcare providers alike. Understanding these nuances becomes particularly important when dealing with EUO no-show cases, where procedural compliance can determine case outcomes. Practitioners must carefully tailor their approach based on the specific departmental requirements that will govern their matter under New York No-Fault Insurance Law.
