Why Trust This Analysis
This article is part of our ongoing euo issues coverage, with 197 published articles analyzing euo issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
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.
The Personal Knowledge Requirement in Civil Litigation
New York procedural law strictly requires that affiants have personal knowledge of the facts they attest to. CPLR 2106 mandates that affidavits state facts, not conclusions, and must be based on the affiant’s own knowledge unless explicitly stating otherwise. This foundational requirement serves critical evidentiary purposes. It ensures testimony is reliable, prevents hearsay, and enables effective cross-examination of witnesses who actually observed or participated in relevant events.
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In EUO no-show cases, the personal knowledge requirement means affiants must have direct knowledge that the provider failed to appear. This knowledge can come from several sources. The affiant may have been physically present at the scheduled EUO location when the provider didn’t show. They may have reviewed contemporaneous records—appointment logs, calendars, or attendance sheets—documenting who appeared and when. They may have spoken directly with personnel who were present at the scheduled examination. What they cannot do is simply state “the provider didn’t appear” without explaining how they know this fact.
The problem with many law firm affidavits is they provide conclusory statements without establishing the basis for knowledge. An attorney or paralegal might state “the assignor failed to appear at the scheduled EUO” without explaining whether they were present, what records they reviewed, or who informed them of the non-appearance. Such affidavits violate basic evidence rules and cannot establish facts on 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?
Root Causes of Defective Affidavits
Jason Tenenbaum’s questioning about why these defective affidavits continue appearing despite repeated judicial rejections points to systemic issues in insurance litigation practice. Several factors likely contribute to this recurring problem. High-volume no-fault litigation often involves standardized form affidavits where practitioners fill in blanks without carefully considering foundational requirements. Attorneys handling hundreds of cases may delegate affidavit preparation to non-lawyers who don’t fully understand evidentiary standards. Time pressures and cost constraints may lead to inadequate review of affidavits before filing.
Additionally, the frequent use of law firm personnel rather than the actual witnesses creates inherent problems. When attorneys or paralegals draft affidavits for their own signature rather than obtaining affidavits from people who actually witnessed events, the personal knowledge requirement becomes difficult to satisfy. The law firm employee knows about the case only through file review, not through direct observation. Their knowledge is secondhand—exactly what the personal knowledge requirement prohibits.
Some practitioners may mistakenly believe that reviewing file materials constitutes sufficient personal knowledge. An attorney might think that because they reviewed the claim file showing an EUO was scheduled, they can attest to non-appearance. But reviewing documents created by others about events the attorney didn’t witness doesn’t give the attorney personal knowledge of those events. The proper approach requires affidavits from people who were actually present or who can authenticate business records documenting appearances and non-appearances.
Correcting the Problem: Best Practices
Insurance carriers can avoid these recurring failures by implementing better affidavit practices. First, obtain affidavits from actual witnesses—the court reporters, examiners, or office staff who were present when the EUO was scheduled to occur. These individuals have genuine personal knowledge of whether the examinee appeared. Second, ensure affidavits explicitly state the basis of knowledge. Rather than just asserting “the provider didn’t appear,” affidavits should state “I was present at [location] on [date] when the EUO was scheduled, and the provider did not appear” or “I reviewed our office attendance log for [date], which shows no appearance by the provider.”
Third, implement quality control procedures where experienced attorneys review affidavits before filing to ensure they meet evidentiary standards. A simple checklist asking “Does this affidavit state how the affiant knows the facts attested to?” would catch most problems. Fourth, provide training to all personnel involved in affidavit preparation about the personal knowledge requirement and why it matters. Understanding the underlying evidentiary principles helps prevent form-based mistakes.
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.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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