Key Takeaway
Court dismisses insurance company's motion due to flawed affidavit lacking personal knowledge of EUO non-appearance, highlighting common procedural errors in no-fault cases.
The Personal Knowledge Requirement in EUO Non-Appearance Cases
In New York no-fault insurance law, when a healthcare provider fails to appear for an Examination Under Oath (EUO), insurance companies often seek summary judgment to dismiss the underlying claim. However, courts require strict adherence to procedural requirements when proving such non-appearances.
The foundation of any successful motion relies on an affidavit from someone with personal knowledge of the facts. This means the affiant must have direct, first-hand knowledge of what occurred — not information gathered from files, reports, or other sources. In EUO cases, this typically requires testimony from someone who was present at the scheduled examination or directly involved in the scheduling process.
Many insurance companies stumble on this seemingly basic requirement, submitting affidavits from attorneys or staff members who lack the necessary personal knowledge. This procedural misstep can doom an otherwise valid motion for summary judgment.
Jason Tenenbaum’s Analysis:
GL Acupuncture, P.C. v Ameriprise Auto & Home, 2016 NY Slip Op 50377(U)(App. Term 2d Dept. 2016)
“Because defendant failed to submit proof by someone with personal knowledge attesting to the nonappearance of plaintiff for the EUOs in question, defendant’s motion for summary judgment dismissing the complaint should have been denied in its entirety”
I do not read enough of these affidavits but what is it that prevents these law firm affidavits from satisfying the “personal knowledge” test? I am in awe how these same issues arise over and over again. Is it sloppiness? Lack of oversight? Proof-reading issues?
Key Takeaway
The GL Acupuncture decision underscores a fundamental principle in EUO non-appearance cases: personal knowledge is non-negotiable. Insurance companies must ensure their affidavits come from individuals who directly witnessed or participated in the events being described. This recurring issue in EUO no-show cases suggests systemic problems in how these motions are prepared and reviewed, potentially costing insurers winnable cases due to procedural oversights.
