Personal knowledge from the First Department

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.

Case Background

In EMA Acupuncture, P.C. v Travelers Ins. Co., the insurance carrier moved for summary judgment based on the plaintiff provider’s principal’s failure to appear for a scheduled examination under oath. The carrier submitted an attorney affirmation describing the office’s procedures when claimants fail to appear for EUOs.

However, the affirmation did not describe how the attorney acquired personal knowledge of these procedures, nor did it state that the attorney was assigned to handle the file and would have conducted the EUO had the principal appeared. The Appellate Term found these omissions fatal to the carrier’s prima facie showing and denied summary judgment.

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.

Legal Significance

The Appellate Term’s decision establishes strict requirements for attorney affirmations in EUO no-show cases. It is not sufficient for attorneys to describe their office’s general procedures; they must demonstrate personal knowledge of how those procedures operate and, preferably, show their involvement in the specific case at issue.

The court’s citation to American Tr. Ins. Co. v Lucas reinforces this standard. That case held that attorneys must “describe or demonstrate personal knowledge of the office procedures” when establishing that proper notice was sent and that a claimant failed to appear. Generic descriptions of office practices, without foundation showing how the attorney knows those practices were followed, lack probative value.

Jason Tenenbaum’s analysis distinguishes between approaches that will satisfy personal knowledge requirements in different departments. The “I was assigned to the file” approach may work in the First Department, where this case arose. However, he notes that this approach will fail under stricter standards established in cases like Alrof and Bright Supply.

The alternative approach, established in cases like Quality v. Interboro, Ortho-Med v. Interboro, and Interboro v. Clennon, focuses on describing specific practices and procedures in detail. Under this approach, the attorney need not claim assignment to the specific file but must demonstrate comprehensive knowledge of the office’s systems for scheduling EUOs, sending notices, tracking responses, and handling no-shows.

This divergence creates strategic considerations for carriers. When litigating in the First Department, having the assigned attorney submit the affirmation may be the safer course. In other departments, detailed procedural descriptions may suffice even from attorneys not specifically assigned to the file.

The decision also reflects broader concerns about the reliability of attorney affirmations in no-fault litigation. Courts have grown skeptical of boilerplate affirmations that merely recite standard office procedures without demonstrating actual knowledge or involvement. This skepticism has led to increasingly stringent requirements for establishing personal knowledge.

Practical Implications

For insurance carriers and their counsel, this decision requires careful attention to how attorney affirmations are drafted. Attorneys should: (1) describe how they acquired knowledge of office procedures (through training, supervision of staff, regular involvement in EUO scheduling, etc.); (2) if possible, state that they were assigned to the specific file; (3) provide detailed descriptions of procedures rather than generic assertions; and (4) attach supporting documentation (scheduling letters, certified mail receipts, office logs) when available.

For healthcare providers challenging EUO no-show defenses, this decision identifies a common weakness in carrier proof. Providers should scrutinize attorney affirmations to determine whether they actually demonstrate personal knowledge or merely parrot generic office procedures. Objections based on lack of personal knowledge can defeat carrier summary judgment motions.

The departmental split on personal knowledge standards also creates venue considerations. Providers may prefer litigating in departments that apply stricter standards, while carriers may prefer more permissive jurisdictions. While venue is often determined by jurisdictional rules that limit party choice, attorneys should be aware of these variations when venue options exist.

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.