Key Takeaway
Insurance company loses summary judgment motion for failing to provide proper proof of plaintiff's non-appearance at examination under oath hearing.
Insurance Company’s EUO Motion Fails Due to Inadequate Proof
In New York no-fault insurance disputes, examinations under oath (EUOs) serve as a critical discovery tool for insurance companies investigating claims. When a plaintiff fails to appear for a scheduled EUO, insurers often move for summary judgment to deny the claim entirely. However, as this recent Appellate Term decision demonstrates, insurance companies must provide proper evidentiary support for their motions—a requirement that many carriers continue to overlook.
The fundamental issue in EUO non-appearance cases centers on proof. Courts require testimony or affidavits from individuals with personal knowledge of the alleged non-appearance. This seemingly straightforward requirement has proven to be a persistent stumbling block for insurance companies, leading to repeated losses in EUO cases across New York courts.
The pattern is clear: insurance companies frequently submit deficient affidavits that lack the necessary foundation of personal knowledge, resulting in denied summary judgment motions and continued litigation costs.
Jason Tenenbaum’s Analysis:
TAM Med. Supply Corp. v Ameriprise Auto & Home, 2016 NY Slip Op 51407(U)(App. Term 2d Dept. 2016)
“Plaintiff correctly argues that, because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the examinations under oath in question, defendant’s cross motion for summary judgment should have been denied”
Oleg, is this the famous “would’ve, could’ve, should’ve but didn’t” affidavit that always loses?
Key Takeaway
This decision reinforces a fundamental evidentiary principle in EUO non-appearance cases: insurance companies must provide affidavits from witnesses with personal knowledge of the plaintiff’s failure to appear. Generic or hearsay-based affidavits consistently fail to meet this standard, resulting in denied summary judgment motions and prolonged litigation for insurers.
