EUO defense not sustained

Examinations Under Oath (EUOs) are a powerful tool available to no-fault insurers in New York. Under 11 NYCRR § 65-3.5(e), an insurer may require a claimant or assignor to submit to an EUO as a condition of receiving benefits, and a failure to appear can serve as a complete defense to a claim. However, establishing the EUO no-show defense requires more than simply asserting that the claimant did not appear—the insurer must present proof from someone with personal knowledge of the nonappearance.

This evidentiary requirement has proven to be a significant stumbling block for insurers, particularly when they rely on affirmations from attorneys at the law firms retained to conduct the EUOs. As this case demonstrates, a law firm partner’s affirmation about a nonappearance does not automatically satisfy the personal knowledge requirement, and courts will reject such evidence when the affiant cannot establish firsthand awareness of the claimant’s failure to attend.

Case Background

In Alleviation Med. Servs., P.C. v Hertz Co., the plaintiff medical provider, as assignee of the injured party, sued to recover first-party no-fault benefits. Hertz had denied the claim based on the assignor’s alleged failure to appear for scheduled EUOs. Both parties moved for summary judgment in the Civil Court.

On appeal to the Appellate Term, Second Department, the court examined whether Hertz had properly established the EUO no-show defense. The insurer relied on an affirmation from a partner at the law firm it had retained to conduct the examinations. The central issue was whether this attorney’s affirmation provided adequate proof of the assignor’s nonappearance.

Jason Tenenbaum’s Analysis:

Alleviation Med. Servs., P.C. v Hertz Co., 2016 NY Slip Op 50371(U)(App. Term 2d Dept. 2016)

**I am sure this was not Rubin, Fiorella’s Hertz case** By looking at the terms “partner”, “Alrof” and “Bright Supply”, I suspect we can figure out who represented Hertz in this case…

“Contrary to defendant’s contention, the affirmation by a partner in the law firm retained by defendant to conduct examinations under oath (EUOs) of plaintiff did not satisfy defendant’s burden of presenting proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130, 2013 NY Slip Op 50458 ; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130, 2013 NY Slip Op 51123 ). As a result, defendant failed to establish, as a matter of law, defendant’s entitlement to summary judgment dismissing the complaint. However, since plaintiff failed to show that it had appeared for either of the EUOs, plaintiff’s motion for summary judgment should have been denied, as plaintiff did not establish that the denial of claim form was conclusory, vague or without merit as a matter of law”

Legal Significance

This decision reinforces the strict evidentiary standards governing EUO no-show defenses in New York no-fault litigation. The Appellate Term relied on two key precedents—Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013) and Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (40 Misc 3d 130[A], 2013)—both of which established that an attorney’s affirmation, without personal knowledge of the claimant’s nonappearance, is insufficient to sustain the defense.

The decision also highlights the symmetry of the personal knowledge requirement. While the court found that the insurer’s proof was deficient, it equally denied the provider’s summary judgment motion because the plaintiff failed to demonstrate that it had actually appeared for the EUOs. Neither side met its burden, meaning the case would proceed to trial on the merits of the EUO defense rather than being resolved on summary judgment.

Practical Implications

For insurers, this case underscores the need to have the actual EUO coordinator or someone present at the examination site provide an affidavit or affirmation attesting to the claimant’s nonappearance. Relying on an attorney’s affirmation—even from a partner at the firm retained to conduct EUOs—is insufficient unless that attorney has personal, firsthand knowledge of the no-show.

For healthcare providers and their counsel, this decision provides a reliable avenue for challenging EUO no-show defenses on evidentiary grounds. However, the court’s denial of the plaintiff’s cross-motion serves as a reminder that providers must also be prepared to demonstrate compliance with EUO scheduling requirements if they wish to obtain summary judgment in their favor.

Key Takeaway

Personal knowledge is the linchpin of the EUO no-show defense. An attorney’s affirmation from the law firm retained to conduct examinations under oath does not, by itself, establish that the claimant failed to appear. Insurers must present testimony from someone who was physically present or directly responsible for documenting attendance at the scheduled EUO.

Related Articles

• Personal Knowledge Requirements for EUO Non-Appearances: NY Legal Standards
• Understanding EUO Denial: When Insurance Companies Can Substantiate Coverage Denials
• How to Challenge EUO No-Show Denials: When Improper Notice Can Reverse Insurance Denials in New York
• Understanding EUO Requirements in New York No-Fault Insurance Cases
• New York No-Fault Insurance Law