Key Takeaway
Court rules insufficient proof of proper EUO notice and no-show in Liberty Mutual v K.O.
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Liberty Mut. Insurance Co. v K.O. Med., P.C., 2016 NY Slip Op 06166 (1st Dept. 2016)
Violation of 3.5(b); 3.6(b)
(1) Plaintiffs seek, inter alia, a declaration that defendant is not entitled to no-fault insurance benefits because it failed to appear for examinations under oath (EUOs). However, plaintiffs failed to demonstrate that the EUOs were properly noticed (see e.g. Interboro Ins. Co. v Perez, 112 AD3d 483 ). Counsel’s affirmation may be sufficient proof that the requests for EUO were mailed (see Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc., 130 AD3d 465 ), but neither the affirmation nor anything else in the record establishes that the requests were mailed in accordance with the time frames set forth in the no-fault implementing regulations. Under the circumstances, the timeliness of plaintiffs’ claim denials is immaterial (see Interboro Ins. Co., 112 AD3d 483).
In this case, the insurance carrier sought to EUO the provider regarding various bills that were received from numerous Assignors If you read the papers, there is no mention of when the billing was received. There was proof of mailing of the EUO letters and uncertain bust statements. The court in light of the recent holdings correctly found that there was no evidence that the EUO’s were timely scheduled relative to the receipt of the bills
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Failure to prove the no-show
(2) “Plaintiffs also failed to establish prima facie defendant’s failure to appear for the EUOs. The transcripts submitted to show defendant’s failure to appear on certain dates were uncertified and unsworn (see Rue v Stokes, 191 AD2d 245, 246-247 ), and no evidence was submitted with respect to the other dates.”
This struck me as odd since the proofs in this case were neither better nor worse than the proofs in Allstate v. Pierre. The carrier should have put a business record foundation paragraph for the EUO bust statements in the affidavit. Of course, Pierre would have been decided differently under the current standard of law.
This could be chronicled under the headline: the perils of DJs when people answer.
Related Articles
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- EUO no-show: Declaratory Judgment substantiated
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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.
About This Topic
Declaratory Judgment Practice in New York
Declaratory judgment proceedings provide a mechanism for parties to obtain binding judicial determinations of their legal rights and obligations. In insurance litigation, declaratory judgments are commonly sought to resolve disputes over policy coverage, fraud allegations, and the enforceability of policy conditions. These articles analyze declaratory judgment procedure, the standards courts apply, and the strategic implications of seeking or defending against declaratory relief in New York insurance cases.
234 published articles in Declaratory Judgments
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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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